Judge Yolanda Orozco, Case 21STCV30228 2022-09-07 Tentative Ruling

Judge: Yolanda Orozco, Case: 21STCV30228, Date: 2022-09-07 Tentative Ruling

Case Number: 21STCV30228 Hearing Date: September 7, 2022 Dept: 31

LEAVE TO AMEND COMPLAINT IS GRANTED

Background

On August 16, 2021, Jacob Palacios (“Plaintiff”) initiated the present action by filing a Complaint against Los Angeles Police Revolver and Athletic Club, Incorporated (erroneously sued as “LAPRAAC”), City of Los Angeles, and Los Angeles Police Department. Plaintiff’s Complaint alleges the following causes of action: (1) Negligence (against Los Angeles Police Revolver and Athletic Club); (2) Negligence (Gov. Code §§ 815.2 and 820) (against the City of Los Angeles and Los Angeles Police Department); and (3) Negligent Supervision, Hiring, or Retention (against the City of Los Angeles and Los Angeles Police Department).

On August 10, 2022, Plaintiff filed a Motion seeking Leave to File a First Amended Complaint.

Defendant City of Los Angeles filed an Opposition on August 24, 2022. Plaintiff filed a Reply on August 30, 2022.

Legal Standard

Leave to amend is permitted under Code of Civil Procedure section 473, subdivision (a) and section 576. The policy favoring amendment and resolving all matters in the same dispute is “so strong that it is a rare case in which denial of leave to amend can be justified. . ..” “Although courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial [citations], this policy should be applied only ‘where no prejudice is shown to the adverse party . . .. [citation]. A different result is indicated ‘where inexcusable delay and probable prejudice to the opposing party’ is shown. [Citation].” (Magpali v. Farmers Group (1996) 48 Cal.App.4th 471, 487.)

Under California Rules of Court, Rule 3.1324, 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. (Cal. Rules of Court, rule 3.1324(a).) A separate supporting declaration specifying (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 reason why the request for amendment was not made earlier must accompany the motion. (Id., rule 3.1324(b).) ¿

Discussion

Plaintiff seeks to file a First Amended Complaint by adding a cause of action for retaliation in violation of Labor Code Section 1102.5 against Defendant City of Los Angeles. The Proposed amended pleaded is attached as Exhibit 1. (See Pincin Decl. Ex. 1.)

Plaintiff asserts he is a law enforcement officer employed with the Los Angeles Police Department, an entity owned, controlled, and Operated by Defendant. This action arises out of the negligent sale, storage, servicing, and handling of firearms by Defendant LAPRAAC and Defendant City’s negligent hiring, supervision, and/or retention of LAPRAAC for failing to vet their agent vendors, all of which caused Plaintiff harm and damages.

Plaintiff alleges that shortly after filing his lawsuit, on January 27, 2022, Plaintiff was assigned to desk duty, and served with a negative comment card on January 27, 2022. (FAC ¶ 45.) Plaintiff’s desk duty was extended on February 24, 2022. (FAC ¶ 47) On April 18, 2022, Plaintiff filed his second Government Claim for Damages alleging retaliation in violation of Labor Code section 1102.5, which the city failed to act on within the 45-day period under Government Code § 912.4. (FAC ¶ 13.)

Defendant City opposes the Motion on the basis that it would be prejudiced due to increased costs and delay of trial. (See Estate of Murphy v. Gulf Ins. Co. (1978) 82 Cal.App.3d 304, 311 [Affirming denial of leave to amend where the jury was empaneled and plaintiff sought to add issue not covered in discovery.].) The Court finds that any prejudice to Defendant City would be minimal given that Plaintiff’s motion was timely filed. Plaintiff’s counsel tried to meet and confer with Defendant regarding the proposed amendment and when no agreement was reached, Plaintiff filed this Motion. Moreover, unlike the party in Estate of Murphy, Plaintiff is not seeking leave to amend on the eve of trial since the trial is not scheduled until March 13, 2023. Furthermore, even if Plaintiff’s Motion were untimely, “it is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.” (See Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.)

Furthermore, the fact that additional discovery may be required, does not outweigh the interest of justice in allowing liberal amendment of the pleadings or resolution of disputed matters in the same lawsuit. (See Dieckmann v. Superior Court (1985) 175 Cal.App.3d 345, 352, Nestle v. Santa Monica (1972) 6 Cal.3d. 320, 939.)¿ Generally, amendments must be permitted unless there is an unwarranted delay in requesting leave to amend or undue prejudice to the opposing party. (See Duchrow v. Forrest (2013) 215 Cal.App.4th 1359, 1377.) There is no evidence that Plaintiff was dilatory or unduly delayed in bringing this Motion. Any prejudice Defendant may suffer appears to be minimal.

Lastly, Defendant’s concern that Plaintiff’s cause of action for the retaliation will not survive a demurrer is irrelevant to this Motion. Grounds for demurrer or motion to strike are premature. After leave to amend is granted, Defendant City will have the opportunity to attack the validity of the amended pleading if it so chooses. (See Kittredge Sports Co., supra, 213 Cal.App.3d at 1048.)

Since Defendant City has failed to show it would be unreasonably prejudiced by granting Plaintiff Leave to file a First Amended Complaint, the motion is GRANTED.

Conclusion

Plaintiff’s request for Leave to file a First Amended Complaint is GRANTED. Plaintiff must e-File the amending pleading within 5 days.

Plaintiff to give notice

The parties are strongly encouraged to attend all scheduled hearings virtually or by audio. Effective July 20, 2020, all matters will be scheduled virtually and/or with audio through the Court’s LACourtConnect technology. The parties are strongly encouraged to use LACourtConnect for all their matters. All masking protocols will be observed at the Courthouse and in the courtrooms.