Judge: Steven A. Ellis, Case: 21STCV44719, Date: 2024-11-08 Tentative Ruling

Case Number: 21STCV44719    Hearing Date: November 8, 2024    Dept: 29

Lange v. Bel-Air Country Club
21STCV44719
Defendant’s Motion to File Amended Cross-Complaint

Tentative

The motion is granted.

Background

On December 7, 2021, Kelly Lange and James Everling (collectively “Plaintiffs”) filed a complaint against Bel-Air Country Club (“Defendant”) and Does 1 through 50, asserting causes of action for premises liability and general negligence arising out of incident in which, Plaintiffs allege, both Plaintiffs fell on a dance floor on December 7, 2019.

On May 10, 2022, Defendant filed its answer.

On July 24, 2023, Defendant filed a cross-complaint against The Thalians (“Thalians”); Jimmy Carnelli Music & Entertainment, Inc. dba Jimmy Carnelli Entertainment (“Carnelli”); and Roes 1 through 25.

On August 14, 2023, Plaintiffs amended their complaint to name Thalians as Doe 1 and Carnelli as Doe 2.

On September 25, 2023, Thalians and Carnelli each filed an answer to Defendant’s cross-complaint.

On October 15, 2024, Defendant filed this Motion for Leave to File an Amended Cross Complaint adding Plaintiff James Everling as a cross-defendant.  

On October 16, 2024, Thalians and Carnelli filed what they describe as a “joinder” in the motion.

Plaintiffs filed an  opposition on October 28. Defendant filed a reply on November 1.

Legal Standard

Code of Civil Procedure section 473, subdivision (a)(1), provides, in relevant part:  “The court may, in furtherance of justice, and on any terms as may be proper, 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.  The court may likewise, in its discretion, 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.” 

“This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.”  (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047.)  Ordinarily, the court will not consider the validity of the proposed amended pleading in ruling on a motion for leave since grounds for a demurrer or motion to strike are premature.  The court, however, does have discretion to deny leave to amend where a proposed amendment fails to state a valid cause of action as a matter of law and the defect cannot be cured by further amendment.  (See California Casualty General Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 281, overruled on other grounds by Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390.)

Under California Rules of Court, rule 3.1324(a), a motion to amend a pleading shall (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. 

Rule 3.1324(b) further provides that a separate declaration must accompany the motion and must specify (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 reasons why the request for amendment was not made earlier. 

Even if a good amendment is proposed in proper form, a long, unwarranted and unexcused delay in presenting it may be a good reason for denial.  In most cases, the factors for timeliness are: (1) lack of diligence in discovering the facts or in offering the amendment after knowledge of them; and (2) the effect of the delay on the adverse party.  If the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the judge has discretion to deny leave to amend.  (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.)  Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, or added costs of preparation such as an increased burden of discovery.  (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488.)

Discussion

Defendant seeks leave to amend its cross-complaint to name Plaintiff James Everling as Roe 1. Defendant attaches a copy of the proposed amended cross-complaint to its motion. (Exh. D.)

Cross-Defendants Thalians and Carnelli “join” the motion; they also submit their own proposed Cross-Complaint against Plaintiff James Everling. (Exh. 1.)

Defendant filed its cross-complaint on July 24, 2023. Defendant contends that recent depositions of Plaintiffs and third-party witness, Tom Politowski, has raised questions about whether Plaintiff Everling tripped over electrical cords or stepped on Plaintiff Kelly Lange’s foot while dancing, causing both Plaintiffs to fall.  (Endelicato Decl., ¶¶ 10-12; Exh. C, 69:9-25.)

The Court finds that Defendant has shown good cause to amend the cross-complaint to name Everling as Roe 1.  The amendment will serve the interests of justice and will not significantly expand the legal or factual issues of the case.  Defendant’s motion is granted.

The Court denies, without prejudice, the “joinder” of Thalians and Carnelli.  Although labelled as a “joinder,” it is not a true joinder: Thalians and Carnelli do not simply support the request of Defendant for the relief sought by Defendant.  Instead, Thalians and Carnelli seek leave to file their own cross-complaint – in effect their own separate relief on their own behalf.  They may or may not have a basis to obtain that relief, but if they seek leave to file their own cross-complaint, they will need to file their own motion (or, if all parties agree, they may proceed by stipulation).

Conclusion

The Court GRANTS Defendant Bel Air Country Club’s motion for leave to file an amended cross-complaint.

The Court GRANTS Defendant Bel Air Country Club LEAVE to file its amended cross-complaint, attached to the moving papers, within 7 days of the hearing.

The Court DENIES, without prejudice, the purported “joinder” of Thalians and Carnelli.

Moving Party to give notice.