Judge Upinder S. Kalra, Case Number: 21STCV36711, Date: 2024-07-10 Tentative Ruling

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(2) Defendant County of Los Angeles erroneously sued as “Los Angeles County Sheriff’s Department”

1. An Order granting leave for Plaintiff to file an Amended Complaint attaching a new Exhibit.

On October 5, 2021, Plaintiff Paula York Herriott (Plaintiff) filed a Complaint against Defendant Los Angeles County Sheriff’s Department (Defendant) with three causes of action for: (1) General Negligence – Civil Rights Violation, (2) General Negligence – Defamation, and (3) General Negligence – Emotional Distress.

That same date, Plaintiff filed a second Complaint against Defendant Catalina Island Company (Catalina) bearing Case No. 21STCV36719 for the same alleged incident.

According to the Complaint, Defendant arrested Plaintiff on October 5, 2019 resulting from an altercation where Plaintiff was attacked by a third party. Plaintiff alleges that Defendant wrongfully arrested her, added her information to their criminal databank, and exposed her private area to the public during the arrest.

On April 28, 2023, the parties filed a Stipulation to Continue FSC, Trial and All Related Pre-Trial Motion/Discovery Deadlines which the court GRANTED.

On February 22, 2024, Defendant filed a Motion for Judgment on the Pleadings which the court GRANTED with leave to amend as to Government Claim Act section 915, only.

On May 8, 2024, Plaintiff filed a Motion for Leave to file First Amended Complaint.

On May 20, 2024, Defendant filed a Motion for Entry of Judgment in its Favor Pursuant to CCP § 438(i)(1)(B) for failure to amend.

California Code of Civil Procedure (CCP) 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 (CRC), rule 3.1324, subdivision (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 California Rule of Court, rule 3.1324, subdivision (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.¿¿¿

“Where a motion for judgment on the pleadings is granted with leave to amend, the court shall not enter a judgment in favor of a party until the following proceedings are had:

(A) If an amended pleading is filed and the moving party contends that pleading is filed after the time to file an amended pleading has expired or that the pleading is in violation of the court’s prior ruling on the motion, then that party shall move to strike the pleading and enter judgment in its favor.

(B) If no amended pleading is filed, then the party shall move for entry of judgment in its favor.” (CCP § 438(i)(1)(A) & (B).)

Plaintiff contends leave to amend is warranted because the amendment will not prejudice Defendant and the failure to attach the claim was excusable mistake. Defendant did not file an opposition.[1]

Here, Plaintiff did not comply with CRC rule 3.1324. Notably, the motion does not include the proposed First Amended Complaint. Instead, Plaintiff indicates the Complaint remains unchanged except for attaching a new exhibit. (Mot. for Leave to Amend 3:18-23.) Additionally, Plaintiff’s declaration does not comport to the requirements of CRC rule 3.1324(b).[2] However, the court notes that Plaintiff previously had leave of court to amend her Complaint.[3] Therefore, Plaintiff’s request to attach the proposed exhibit is in line with the scope of the court’s leave to amend and so leave was not required. (See Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015.) Still, Plaintiff’s “proposed amendment” is incomplete. (See State of California v. Superior Court (2004) 32 Cal.4th 1234, 1239 [concluding that failing to “allege facts demonstrating or excusing compliance with the claim presentation requirement subjects a claim against a public entity to a demurrer for failure to state a cause of action.”]). In sum, the court cannot accept a proposed amended complaint that contains no proposed factual amendments.

Defendant contends that Judgment should be entered in its favor because Plaintiff did not amend the Complaint within 30 days from the court’s ruling on its motion for judgment on the pleadings. Defendant further contends that Plaintiff’s motion for leave to amend is an attempt to relitigate the court’s prior ruling granting its Motion for Judgment on the Pleadings. Plaintiff did not file an opposition.

“Where a motion is granted pursuant to this section with leave to file an amended complaint or answer, as the case may be, then the court shall grant 30 days to the party against whom the motion was granted to file an amended complaint or answer, as the case may be.” (CCP § 438(h)(2).) “If an amended complaint is filed after the time to file an amended complaint has expired, then the court may strike the complaint pursuant to Section 436 and enter judgment in favor of that defendant against that plaintiff or a plaintiff.” (Id. at subd.(h)(4).)

Here, dismissal is warranted. As noted above, Plaintiff intended to amend the Complaint to include an attachment that she appears to claim supports compliance with the Government Claims Act. Defendant has not provided authority that a pro se litigant who has indicated an intent to file an amended complaint is subject to dismissal pursuant to CCP § 438(i)(1)(B).[4] However, the statute is clear. “[If] the motion is granted with respect to the entire complaint . . . with leave to file an amended complaint” but one is not filed, “then after the time to file an amended complaint . . . has expired, judgment shall be entered forthwith in favor of the moving party.” (CCP § 438(h)(4)(C).) “When a litigant is appearing in propria persona, he is entitled to the same, but no greater, consideration than other litigants and attorneys.” (Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1267.) A pro se litigant “is held to the same restrictive rules of procedure as an attorney.” (Ibid.) Here, the court granted Defendant’s Motion for Judgment on the Pleadings on April 9, 2024. (Declaration of Anita Susan Brenner (Brenner Decl.) ¶3-4, Exhibit A.) Defendant served notice of ruling via e-mail on April 9, 2024. (Brenner Decl. ¶6.) Plaintiff’s thirty-day plus two court day deadline to file an amended complaint was Monday, May 13, 2024. (CCP §438(h)(2) [30 days from granting motion for judgment on the pleadings with leave to amend]; § 1010.6(4)(A) [two court days attached to deadline].) Plaintiff did not file an amended complaint.

Accordingly, the court GRANTS Defendant’s Motion for Entry of Judgment. The court refers to the proposed judgment submitted by Defendant.

[1] Defendant’s concurrent motion for entry of judgment indicates that the proposed amendment is what Plaintiff proposed in opposition to the Motion for Judgment on the Pleadings. (Mot. for Entry of Judgment, 6:14-17.)

[2] Plaintiff’s declaration hints to these items but does not unequivocally do so.

[3] Consistent with the law, the court uses its discretion to take reasonable steps to enable Plaintiff as a pro se litigant to be heard. (Cal. Code Jud. Ethics, canon 3B(8).)

[4] Defendant’s argument pertaining to substantial compliance is premature and more appropriately included in opposition to Plaintiff’s motion for leave to amend.