Judge: Steven A. Ellis, Case: 21STCV43761, Date: 2024-01-04 Tentative Ruling
Case Number: 21STCV43761 Hearing Date: January 4, 2024 Dept: 29
Motion for Leave to File First Amended Cross-Complaint filed by Defendant Walmart, Inc.
Motion to Continue Trial filed by TK Elevators
Tentative
The Court GRANTS TKE’s motion to continue trial.
The Court GRANTS Walmart’s motion for leave to amend its Cross-Complaint.
Background
Mercedes Marisol Trejo ("Plaintiff") alleges that she was injured when she slipped and fell on April 25, 2020, at a Walmart location on Eastland Center Drive in West Covina, California. Plaintiff filed the Complaint in this action on December 1, 2021, asserting causes of action for negligence and premises liability against Defendants Walmart, Inc. (“Walmart”), Rafael Garcia, and Does 1 through 30.
On January 5, 2022, Walmart filed its Answer to the Complaint.
On March 4, 2022, the Court, at the request of Plaintiff, dismissed all claims against Defendant Garcia with prejudice.
On May 24, 2022, Walmart filed a Cross-Complaint against Schindler Elevator Corporation (“Schindler”) and Roes 1 through 25.
On October 13, 2022, Plaintiff amended her complaint to name Schindler as Doe 1. Schindler filed its Answer to the Complaint on November 16, 2022.
On February 15, 2023, the Court, at the request of Walmart, dismissed the claims in Walmart’s Cross-Complaint against Schindler.
On March 27, 2023, Walmart amended its Cross-Complaint to name TK Elevator Corporation (“TKE”) as Roe 1 and CBRE Group, Inc. (“CBRE”) as Roe 2. CBRE filed its Answer to the Cross-Complaint on May 12, 2023. TKE filed its Answer to the Cross-Complaint on June 9, 2023. On the same day, TKE filed a Cross-Complaint against Roes 1 through 25.
On September 11, 2023, the Court, at the request of Walmart, dismissed the claims in Walmart’s Cross-Complaint against CBRE.
Before the Court at this time are two motions.
First, on October 2, 2023, Walmart filed this motion for leave to amend its Cros-Complaint. On December 4, 2023, TKE filed its opposition, and on December 8, 2023, Defendant filed its reply.
Second, on November 29, 2023, TKE filed its motion to continue trial and related dates. No opposition has been filed.
Legal Standard
California Code of Civil Procedure section 473 permits the court, in furtherance of justice and on any proper terms, to allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. (Code Civ. Proc., § 473, subd. (a); Branick v. Downey Savings & Loan Association (2006) 39 Cal.4th 235, 242.) The court may also, in its discretion and after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. (Code Civ. Proc., § 473, subd. (a); Branick, supra, 39 Cal.4th at 242.) As judicial policy favors resolution of all disputed matters between the parties, leave to amend is generally liberally granted. (See Kolani v. Gluska (1998) 64 Cal.App.4th 402, 412.) The court may deny the plaintiff’s leave to amend if there is prejudice to the opposing party, such as delay in trial, loss of critical evidence, or added costs of preparation. (Id.)
A motion to amend a pleading before trial must (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. (Cal. Rules of Court, rule 3.1324(a).) A separate supporting declaration specifying (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reason why the request for amendment was not made earlier must accompany the motion. (Id., rule 3.1324(b).)
Code Civ. Proc. § 128(a)(8) provides that the court has the power to amend and control its process and orders to make them conform to law and justice. “The power to determine when a continuance should be granted is within the discretion of the trial court.” (Color-Vue, Inc. v. Abrams (1996) 44 Cal.App.4th 1599, 1603.) “A trial court has wide latitude in the matter of calendar control including the granting or denying of continuances.” (Park Motors, Inc. v. Cozens (1975) 49 Cal.App.3d 12, 18.)
Each request for a continuance must be considered on its own merits according to California Rules of Court, Rule 3.1332(c). The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances of good cause include:
“(1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances;
(2) The unavailability of a party because of death, illness, or other excusable circumstances;
(3) The unavailability of trial counsel because of death, illness, or other excusable circumstances;
(4) The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice;
(5) The addition of a new party if: (A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or (B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party's involvement in the case;
(6) A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or
(7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.”
(Cal. Rules of Court, Rule 3.1332(c).)
California Rules of Court, Rule 3.1332 sets forth a list of non-exhaustive factors to be analyzed when determining whether good cause for a trial continuance is present. A court considers factors such as:
“(1) The proximity of the trial date;
(2) Whether there was any previous continuance, extension of time, or delay of trial due to any party;
(3) The length of the continuance requested;
(4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance;
(5) The prejudice that parties or witnesses will suffer as a result of the continuance;
(6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay;
(7) The court's calendar and the impact of granting a continuance on other pending trials;
(8) Whether trial counsel is engaged in another trial;
(9) Whether all parties have stipulated to a continuance;
(10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and
(11) Any other fact or circumstance relevant to the fair determination of the motion or application.”
(Cal. Rules of Court, Rule 3.1332(d).)
Discussion
Continue Trial
TK Elevators requests a continuance of trial, arguing that it was brought into this action in June of 2023, and needs more time to complete discovery, including written discovery, depositions and site inspections. (Brueggemann Decl., ¶ 3, 6.) Further, the parties filed a joint stipulation to continue the trial date on October 25, 2023. (Id., ¶ 7.) This stipulation was denied without prejudice for procedural reasons, but it shows that all parties are in agreement and no party would be unfairly prejudiced by the requested continuance.
The Court finds TK Elevators has established good cause for continuing the trial date. Based on the agreement of the parties, and for good cause shown, the motion is GRANTED. Trial is continued to October 1, 2024.
Leave to Amend Cross-Complaint
The Cross-Complaint filed by Walmart in May 2022, and subsequently amended to name TKE as a Roe Cross-Defendant, asserts causes of action for indemnification, comparative indemnity and contribution, and declaratory relief. Walmart now seeks to amend the Cross-Complaint to add causes of action for breach of express contract, express contractual indemnity, breach of duty to defend, and an additional claim for declaratory relief. Defendant includes a copy of the First Amended Cross-Complaint with its filing. (Richardson Decl., ¶ 3; Exhibit A.)
In support of the motion, Walmart cites the liberal policy of allowing amendment and its ongoing investigation. Walmart asserts that it initially formed the mistaken belief that Schindler, not TKE, was the party maintaining the escalator at the premises at issue, and now that it has recognized that TKE is the correct party, it seeks to amend the Cross-Complaint to add claims based upon the provisions of the express contract between the parties.
TKE’s primary argument in opposition is that it would be prejudiced by the amendment, particularly in light of the upcoming trial date of February 1, 2024. That date, however, has been continued (see above). TKE’s other arguments are not sufficient to overcome the strong policy in favor of liberality in allowing amendments to pleadings, absent a showing of prejudice.
Accordingly, the Court GRANTS Walmart’s motion for leave to amend its Cross-Complaint.
Conclusion
The Court GRANTS TKE’s motion to continue trial. Trial is continued to October 1, 2024. The Final Status Conference and all deadlines are reset based on the new trial date.
Final Status Conference is continued to 09/17/2024 at 10:00 AM in Department 29 at Spring
Street Courthouse. Non-Jury Trial is continued to 10/01/2024 at 08:30 AM in Department 29 at
Spring Street Courthouse.
The Court GRANTS Walmart’s motion for leave to amend its Cross-Complaint. Walmart is granted leave to file the amended Cross-Complaint attached to the moving papers within 10 days of notice of this ruling
Counsel for Walmart is ordered to give notice as to the Court’s ruling on both motions.