Judge: William A. Crowfoot, Case: 19STCV21958, Date: 2022-07-25 Tentative Ruling

Case Number: 19STCV21958    Hearing Date: July 25, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.         BACKGROUND

On June 21, 2019, Plaintiffs Silverio Hernandez (“Hernandez”) and Rigoberta M. Rodriguez (“Rodriguez”) filed this action against Defendants Erica Chen (“Erica”), Siulan Chen (“Siulan”), Mingyu Chen (“Mingyu”), Patrick Chen (“Patrick”) and Little Tokyo Pet Clinic (“LTPC”) for motor vehicle negligence and general negligence. Plaintiffs later amended the complaint to include Defendant Hye-Ok Chung (“Chung”).

On October 9, 2020, Plaintiffs filed the First Amended Complaint, adding a cause of action for intentional tort.

On June 22, 2021, Plaintiffs filed the Second Amended Complaint for motor vehicle negligence and negligent entrustment of a motor vehicle. The Court struck the SAC on August 23, 2021, as it was filed without leave of court or a stipulation between parties.

On September 14, 2021, all Defendants but LTPC filed an answer.

On June 29, 2022, Plaintiffs filed a Motion for Leave to File the Third Amended Complaint to be heard on July 25, 2022.

Trial is currently scheduled for October 28, 2022.

II.        LEGAL STANDARD

CCP §473(a) states “(1) 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.

(2) When it appears to the satisfaction of the court that the amendment renders it necessary, the court may postpone the trial, and may, when the postponement will by the amendment be rendered necessary, require, as a condition to the amendment, the payment to the adverse party of any costs as may be just.”

III.      DISCUSSION

Plaintiffs request the Court grant leave for Plaintiffs to file the Third Amended Complaint to include allegations of the employment of Erica by LTPC at the time of the subject incident. Plaintiffs argues that at the time of the initial filing fo the complaint, Plaintiffs alleged that Erica was employed by a DOE Defendant. Plaintiffs further argue that Plaintiffs were ignorant of the name of Chung at the time of filing, and subsequently learned that he is liable for LTPC under a doctrine of respondent superior. Plaintiff further states that the First Amended Complaint, which does not list LTPC as a defendant was filed in error, as evidenced by the lack of attorney signature and should thus be stricken. Counsel has submitted a declaration attesting to this error, requesting relief pursuant to CCP § 473.

Under CCP § 128.7, every pleading shall be signed by one attorney of record; an “unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attendiont of the attorney or party.” Here, there is no indication that Plaintiffs’ counsel ever provided a signature to the First Amended Complaint; thus, the Court finds that the First Amended Complaint should be stricken. For the purposes of this motion, therefore, the Court deems the initial complaint the operative pleading.

Next, the Court notes that there has been no formal dismissal entered against LTPC. It is still listed as a named party on the Court’s docket. There is no need, therefore, to grant relief as the original complaint is the operative pleading.

Plaintiffs are correct in that Plaintiffs intially alleged that Erica was employed by a DOE Defendant. Plaintiffs only discovered that Chung was effectively acting as said employer after filing the complaint, and were in fact truly ignorant of Chung’s identity. Thus, the Court finds it proper to grant leave to amend the complaint on these grounds. There is no prejudice to Defendants, as Defendants have previously answered prior operative complaints and are alread invested in this action. The Third Amended Complaint serves to clarify the relationship between parties and the allegations asserted against them. Accordingly, the Ground grants the motion.

IV.      CONCLUSION

Plaintiffs Silverio Hernandez and Rigoberta M. Rodriguez’s Motion for Leave to File the Third Amended Complaint is GRANTED. Plaintiff has 30 days from the hearing on this motion to file and serve the Second Amended Complaint. 

Moving party to give notice. 

            Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.