2016-00191904-CU-PA

Amado Onate vs. James L. Pulley

Nature of Proceeding: Motion to File First Amended Complaint

Filed By: Rosenthal, S. David

*** If oral argument is timely requested on this matter, it will take place on Wednesday, January 3, 2018 at 9:00 a.m. (unless the parties agree to a later date and promptly notify the court clerk of the new date). ***

Plaintiff’s motion for leave to file First Amended Complaint (“1AC”) is, in light of the 11-month delay in seeking this relief and the imminent trial date, reluctantly GRANTED but to afford defendants an opportunity to challenge the sufficiency of the new cause of action, to conduct discovery on the new cause of action and/or to file dispositive motions, the current trial date of 1/16/2018 is VACATED, as follows.

Opposing counsel failed to comply with CRC Rule 3.1110(b)(4).

This action filed in 2016 arises out of plaintiff’s personal injury in 2015. Trial is currently set to commence on 1/16/2018. Plaintiff now seeks to a new cause of action for breach of mandatory duty against the County of Sacramento, which argues that it will be prejudiced by the proposed amendment on the eve of trial and that the new cause of action is futile for several reasons. The County insists that if leave to amend is granted, the trial date must be vacated and that discovery conducted on the new cause of action.

Although the Court finds that this motion to amend could and should have been brought much sooner especially in light of the discovery in February 2017 of the facts on which the new cause of action is based as well as the initial January 2018 trial date, the Court finds there is a vast body of law which holds that amendments to pleadings

are to be granted with great liberality before trial and sometimes even during trial. (See, e.g., Huff v. Wilkins (2006) 138 Cal.App.4th 732, 736.) While there is authority indicating that the Court may deny leave to amend where there is both an unwarranted delay in seeking the amendment and resulting prejudice to the opposing party, the prejudice cited by the County is effectively mitigated by this order vacating of the current 1/16/2018 trial date and affording an opportunity to challenge the sufficiency of the new cause of action 2AC, to conduct discovery on it and/or to file dispositive motions.

The Court acknowledges County’s argument that the proposed new cause of action is deficient but a trial court will not ordinarily consider such a challenge to the sufficiency of the proposed pleading in opposition to a motion to amend. Instead, given the current trial date has now been vacated, County is free to challenge the adequacy of the 1AC once it is actually filed. Coupled with the fact that the Court is aware of no authority which compels it to consider here the sufficiency of the new allegations, this Court will exercise its discretion and grant the motion to amend.

If any defendant intends to demur to the 1AC or move to strike, it shall not only comply with the meet-and-confer requirements of Code of Civil Procedure §430.41(a)(3) but also determine if any other defendant who has appeared in this action intends to demur or move to strike. If so, all such defendants shall coordinate a single hearing date for their demurrers and/or motions to strike. Additionally, a copy of the 1AC shall be included with the moving papers.

Pursuant to Local Rule 2.89, the parties shall within 60 calendar days confer and agree on at least three trial dates and three settlement conference dates. Plaintiff’s counsel will utilize the on-line submission form located at www.saccourt.ca.gov for this process. Once the dates are submitted, the Court will select a settlement conference date and a trial date and will notify plaintiff’s counsel via email. Plaintiff’s counsel will serve on all parties and file a Notice of Time and Date of Trial and Mandatory Settlement Conference. Available trial and settlement conference dates are provided on the court’s website at www.saccourt.ca.gov and will be updated daily.