Judge: Virginia Keeny, Case: 21STCV02534, Date: 2023-02-02 Tentative Ruling

Case Number: 21STCV02534    Hearing Date: February 2, 2023    Dept: W

BRUCE KELLY V. WESTFIELD TOPANGA OWNER LLC

DEFENDANT/CROSS-DEFENDANT, CSI ELECTRICAL CONTRACTORS, INC.’S MOTION FOR LEAVE TO AMEND ANSWER TO PLAINTIFF’S FIRST AMENDED COMPLAINT

Date of Hearing:        February 2, 2023                                           Trial Date:       None set. 

Department:              W                                                                    Case No.:        21STCV02534

Moving Party:            Defendant/Cross-Defendant, CSI Electrical Contractors, Inc.

Responding Party:     Plaintiff Bruce Kelly

BACKGROUND

This is a personal injury action. Plaintiff alleges he suffered injuries while he was working on the renovation of the Westfield Topanga Mall Shopping Center. Plaintiff alleges he was injured while using a ladder designed and manufactured by Defendant Werner Co. As a result of defendants’ negligent acts and omissions, on January 24, 2019, while Plaintiff was pulling communication cables through a patch of ceiling, fell from his ladder through ceiling panels and struck his head on a concrete floor, which knocked him unconscious. As a result, plaintiff has suffered severe physical injuries, including a traumatic brain injury, emotional injuries, and economic injuries.

On August 26, 2021, plaintiff filed a first amended complaint against defendants Westfield Topanga Owner LLC; Westfield Topanga Owner LP; Westfield America Limited Partnership; Westfield DDC Inc.; Westfield DDC LLC; CSI Electrical Contractors, Inc.; New Werner Holding Co., Inc.; Werner Co. (erroneously sued as Werner Co. (DE)); Werner Co., Which Will Do Business In California As New Werner Co.; Old Ladder Co. (PA), Inc.; and Old Ladder Co. asserting causes of action for 1) negligence—premises liability; 2) negligence; 3) negligence—negligent exercise of retained control; 4) negligence—product liability; and 5) strict product liability.

Westfield filed an amended cross complaint on January 3, 2022 against CSI Electrical and Communications Technology Services, LLC for implied indemnity, contribution and apportionment, express indemnity, declaratory relief, and breach of contract.

[TENTATIVE] RULING:

CSI Electrical Contractors, Inc.’s Motion For Leave to Amend Answer to Plaintiff’s First Amended Complaint is GRANTED.

DISCUSSION

CSI Electrical Contractors, Inc. seeks to add the Privette Doctrine as an affirmative defense.

California law holds that leave to amend is to be granted liberally, to accomplish substantial justice for both parties. (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 489; CCP §576.) “Assuming proper notice, the trial court has wide discretion in determining whether to allow the amendment, but the appropriate exercise of that discretion requires the trial court to consider a number of factors: ‘including the conduct of the moving party and the belated presentation of the amendment. The law is well settled that a long deferred presentation of the proposed amendment without a showing of excuse for the delay is itself a significant factor to uphold the trial court's denial of the amendment.’” (Leader v. Health Ind. of America, Inc. (2001) 89 Cal.App.4th 603, 613.)  Absent prejudice, trial delay alone is not grounds to deny a motion for leave to amend.  (See Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 563-65.)

A party requesting leave to amend must also comply with CRC Rule 3.1324, by including a copy of the proposed amended pleading and attaching a declaration by Plaintiff’s counsel, as to (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) why the request was not made earlier. The motion itself must state what allegations in the previous pleading are proposed to be deleted and what allegations are proposed to be added to the previous pleading, and where, by page, paragraph, and line number, the deleted or additional allegations are located. (CRC Rule 3.1324(a).)

CSI contends on September 23, 2021, it filed its answer to Plaintiff’s FAC identifying 24 affirmative defenses. Recently, however, CSI discovered the need to amend their answer to add the additional affirmative defense. On June 6, 2022, the deposition of Douglas William Schatz, as Person Most Knowledgeable for Plaintiff’s employer, CTS, took place. There Mr. Schatz testified as to CTS’ responsibilities on the job site, which included providing all the tools CTS employees used to perform their work, picking up and cleaning up after themselves, how the work was assigned, and so forth. On June 13, 2022, the deposition of Eric Seeger, CTS’ Lead Installer for the project, took place. Mr. Seeger testified that CTS was solely responsible for determining how to actually perform the work it was assigned, for deciding where the team would work day-to-day at the project, and so forth. CSI contends at the time it filed their answer to Plaintiff’s FAC, these facts were unknown and unconfirmed.

CSI further argues granting the instant motion will not result in unfair prejudice as trial is not set and there is still ample time for the parties to investigate the Privette Doctrine defense. Moreover, CSI worked diligently and promptly in addressing this issue by bringing the instant motion within less than two months of the depositions. As a result, CSI requests leave to amend to file an amended answer to add the Privette Doctrine as an affirmative defense.

In opposition, Plaintiff argues leave to amend should be denied because CSI’s answer to the initial complaint had already contained the Privette Doctrine defense and as a result, the contention that CSI discovered the defense at the depositions  is not credible. Moreover, CSI should have already known whether they provided  any tools or had responsibilities on the job site. CSI issued discovery responses admitting that they did not supply work equipment. Moreover, CSI waited 11 months to file the motion after the filing of CSI’s original answer to the FAC on September 23, 2021. Plaintiff is now prejudiced by the late filing as they had the right to rely on Defendant CSI’s omission of its previous Privette defense when Plaintiff’s counsel was preparing for and participating in the June 6, 2022 deposition of Doug Schatz and the June 13, 2022 deposition of Eric Seeger.

Liberality should be displayed in allowing amendments to answers, for a defendant denied leave to amend is permanently deprived of a defense. (Gould v. Stafford (1894) 101 Cal. 32, 34; Dunzweiler v. Superior Court (1968) 267 Cal.App.2d 569, 576.) Given the liberality in permitting amendments, the court grants CSI’ motion for leave to file an amended answer.  The court is aware that the first available hearing date was not until nearly six months later and should not prejudice CSI. The court agrees, however, Plaintiff rightly relied on CSI’ lack of affirmative defense when deposing Doug Schatz and Eric Seeger. If Plaintiff seeks to re-depose Mr. Schatz and Mr. Seeger, CSI to pay costs. CSI failed to explain why they asserted the affirmative defense in their answer to the initial complaint but then withdrew their Privette defense when filing the answer to the amended complaint.

Accordingly, the court grants CSI Electrical Contractors, Inc.’s Motion For Leave to Amend Answer to Plaintiff’s First Amended Complaint. The court finds CSI has also complied with CRC Rule 3.1324.