Judge: Steven A. Ellis, Case: 21STCV45288, Date: 2024-12-03 Tentative Ruling

Case Number: 21STCV45288    Hearing Date: December 3, 2024    Dept: 29

Dresden v. Luben
21STCV45288
Defendant’s Motion for Leave to File Amended Answer

Tentative

The motion is denied without prejudice.

Background

On  December 13, 2021, Veronica Dresden (“Plaintiff”) filed a complaint against Bryan Luben, individually and dba Catering by Bryan (“Defendant”) and Does 1 through 50, asserting causes of action for premises liability and general negligence arising out of an alleged slip and fall on December 17, 2019.

On January 18, 2024, Defendant filed an answer and cross-complaint against Neutrogena Corporation and Roes 1 through 50.

On May 9, 2024, Defendant amended the cross-complaint to name Johns & Johnson Services, Inc. as Roe 1.

On May 13, 2024, the Court, at the request of Defendant, dismissed the causes of action in the cross-complaint asserted against Neutrogena Corporation.

On September 25, 2024, Defendant filed this motion for leave to file an amended answer. No opposition has been filed.

Legal Authority

CCP § 473(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 CRC 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. 

Under CRC Rule 3.1324(b), 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

Defendants request leave to amend their answer to add affirmative defenses relating to negligence of Plaintiff’s employer. (Carron Decl., ¶ 7.)

Defendant has included a copy of the proposed amended answer. (Id., ¶ 6, Exh. E.)

Under California Rules of Court, rule 3.1324(b), a declaration must be provided to show (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. 

Defense counsel’s declaration addresses the effect of the amendment, counsel does not address the remaining topics required under California Rules of Court, rule 3.1324(b).

Accordingly, the motion is denied without prejudice, as Defendant has not addressed requirements of California Rules of Court, rule 3.1324(b).

Conclusion

The Court DENIES without prejudice Defendant’s motion for leave to file an amended answer.

Moving Party is to give notice.