Judge: Theresa M. Traber, Case: 19STCV43469, Date: 2023-02-14 Tentative Ruling

Case Number: 19STCV43469    Hearing Date: February 14, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     February 14, 2023                 TRIAL DATE: April 11, 2023

CASE:                         Robert E. Thacker, et al. v. Southland Living, et al. 

CASE NO.:                 19STCV43469 

MOTION FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT

MOVING PARTY:               Plaintiff Juliana Garcia, individually and as successor in interest to Robert E. Thacker

RESPONDING PARTY(S): Defendants Southland Living, Southland Management LLC, and the Ensign Group, Inc.

CASE HISTORY:

·         12/04/19: Complaint filed. 

·         12/11/19: The Ensign Group, Inc. substituted for The Flagstone Group, Inc. 

·         02/21/20: Third cause of action for willful misconduct dismissed with prejudice. 

·         12/04/20: First Amended Complaint filed. 

·         01/06/21: Second Amended Complaint filed. 

·         08/03/21: Third Amended Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a wrongful death action. Plaintiff alleges that the decedent, Robert Thacker, suffered neglect while he was a resident at Southland Living.  

Plaintiffs move for leave to file a fourth amended complaint.

TENTATIVE RULING:

Plaintiffs’ Motion for Leave to File a Fourth Amended Complaint is DENIED.

DISCUSSION:

            Plaintiffs move for leave to file a fourth amended complaint.

//

Legal Standard

The Court may, “at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, . . . allow the amendment of any pleading.” (Code Civ. Proc. § 576.) A motion to amend a pleading before trial must meet the following requirements:

(a) Contents of motion

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.

(b) Supporting declaration

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.

(Cal. Rules of Court Rule 3.1324.)

//

Contents of Motion

            Plaintiffs attached the proposed fourth amended complaint to the Declaration of Lisa Trinh Flint in support of the motion. (See Declaration of Lisa Trinh Flint ISO Mot. Exh. 1. ) Plaintiffs have therefore complied with the Rule 3.1324(a)(1), because the proposed pleading is included with the moving papers. Plaintiffs’ motion also indicates which allegations are proposed to be added or deleted by page, paragraph, and line number, as required by California Rule of Court 3.1324(a)(2) and (a)(3).

            The Court therefore finds that Plaintiffs have complied with the requirements for the motion itself.

Supporting Declaration

            The Declaration of Lisa Trinh Flint does not expressly state the purpose of the proposed amendments. However, the body of the motion states that the purpose of the proposed amendments is to add a cause of action for premises liability. The Court therefore finds that Plaintiffs have substantially complied with Rule 3.1324(b)(1) by clearly stating the effect of the proposed amendments.

            The Declaration also does not state why the amendments are necessary and proper, as required by Rule 3.1324(b)(2), nor when the facts giving rise to the amended allegations were discovered, as required by Rule 3.1324(b)(3). More damning, the Declaration provides no explanation for why amendment was not sought sooner to add a cause of action for premises liability as to the condition of the sidewalk on which the decedent fell. Plaintiffs offer no justification for failing to bring these claims at any point in the four years this action has been pending, despite having had three previous opportunities to amend the Complaint. Plaintiffs attempt to cure this defect by offering a subsequent declaration stating that the previous amendments were technical, rather than substantive. (Supplemental Declaration of Lisa Trinh Flint ISO Mot. ¶¶ 5, 8, 15.) Plaintiffs also state that Plaintiffs’ counsel only recognized the existence of a premises liability claim around January 3, 2023. (Id. ¶ 22.)

            In opposition, Defendants contend that, first, this new cause of action will be subject to “unscalable” defenses. The Court declines to address the merits in the context of a motion for leave to amend.

            More persuasively, however, Defendants also argue that Plaintiffs’ delay in seeking this amendment is unjustifiable and grounds for denial of the motion. “[E]ven if a good amendment is proposed in proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial.” (Huff v. Wilkins (2006) 138 Cal.App.4th 732, 746.) As admitted in Plaintiffs’ counsel’s own correspondence with Defendants’ counsel, this cause of action was what Plaintiffs “had been arguing throughout the litigation in addition to the standard of care,” but had not been formally pled. (Flint Supp Decl. Exh. 8.) Plaintiffs were therefore properly aware of this claim well in advance of January 3, 2023, and, despite having had four years and multiple opportunities to amend the Complaint, Plaintiffs failed to do so.

Even considering the strong presumption in favor of permitting amendment, the Court cannot conclude that leave to amend is warranted based on these facts. Plaintiffs have failed to offer adequate justification for bringing this amendment at such a late date.

CONCLUSION:

            Accordingly, Plaintiffs’ Motion for Leave to File a Fourth Amended Complaint is DENIED.

            Moving Parties to give notice.

IT IS SO ORDERED.

Dated: February 14, 2023                               ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.