Judge Thomas D. Long, Case 19STCV44908 2022-07-27 Tentative Ruling

On January 30, 2020, Plaintiff Sumalai Sapphaithoon filed a first amended complaint (“FAC”) against Defendants Ampaunchit Wiwatniwong aka Posey Chan (“Chan”), Bunthiwa Sae Tang, and Joy King. The Court granted Tang’s motion to quash service of summons on February 25, 2020, and Plaintiff filed a new proof of service on October 9, 2020. Chan filed an answer on February 27, 2020. Plaintiff dismissed King on June 1, 2022. On June 30, 2022, Plaintiff filed this motion for leave to amend the FAC.

The Court may, in its discretion and after notice to the adverse party, allow an amendment to any pleading. (Code Civ. Proc., § 473, subd. (a)(1).) A motion to amend a pleading must include a copy of the proposed amendment or amended pleading which must be serially numbered to differentiate it from previous pleadings or amendments and must state what allegations in the previous pleading are proposed to be deleted or added, if any, and where, by page, paragraph, and line number, the allegations are located. (California Rules of Court, rule 3.1324(a).) The motion shall also be accompanied by a declaration attesting to the effect of the amendment, why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and why the request for amendment was not made earlier. (California Rules of Court, rule 3.1324(b).)

Plaintiff seeks to remove now-dismissed Joy King as a defendant, add allegations that King was an agent of Chan, add dates of violations, specify the amount of damages, specify the amount of civil penalties, specify the amount of treble damages, and delete Exhibits B and C. (Motion at pp. 2-4.) Plaintiff identifies the amendments by page and line number and provides a copy of the proposed SAC. (Elsner Decl., Ex. B.) Counsel explains that at the June 27, 2022 hearing on the Order to Show Cause Re: Entry of Default Against Defendant Bunthiwa Sae Tang, the Court determined that the statement of damages was insufficient because the action is not one for personal injury or wrongful death, so the FAC should be amended to include the specific amounts of damages sought by plaintiff. (Elsner Decl. ¶ 3 & Ex. A.) Plaintiff therefore seeks to amend to state the specific amount of damages. (Id. at ¶ 4.) The amendment will also clarify that King is no longer a defendant and that Chan was acting within the scope of her agency with King. (Id. at ¶ 5.) Trial is currently set for October 10, 2022, but the proposed amendment does not enlarge the issues in this case. Defendants did not oppose this motion, and no prejudice is shown. The filing and service of the SAC will also provide Tang with another opportunity to respond and avoid a default judgment.

Plaintiff also requests that Chan’s answer to the FAC stand as an answer to the SAC. The proposed SAC adds dates, amounts of damages, amounts of civil penalties, and other details, so the defendants should be allowed to respond to these new allegations. On the other hand, Chan’s answer to the FAC—with only a general denial and affirmative defenses—could still stand as an answer to the SAC. (See Carrasco v. Craft (1985) 164 Cal.App.3d 796, 808-811.) Chan may choose to file a new answer to the SAC, but if she does not, the Court will deem the answer to the FAC applicable to the SAC, precluding Chan’s default.

In sum, the motion for leave to amend the complaint is GRANTED. Plaintiff is ordered to file and serve her SAC within 5 days.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Hon. Thomas D. Long

Judge of the Superior Court