Case Number: BC645252 Hearing Date: April 09, 2019 Dept: 4B

[TENTATIVE] ORDER RE: PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT; DENIED

On December 29, 2016, Plaintiff Flora Eliahozadeh (“Plaintiff”) filed this action against Defendant Cucina Bene, Inc. (“Defendant”) for negligence and premises liability relating to an April 17, 2016 slip and fall. Plaintiff seeks to file a First Amended Complaint to add causes of action for negligent infliction of emotional distress, violation of right to privacy, and violation of Civil Code section 1708.8.

The court may, in its discretion and after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading, including adding or striking out the name of any party, or correcting a mistake in the name of a party, or a mistake in any other respect. (Code Civ. Proc., § 473, subd. (a)(1).) “Public policy dictates that leave to amend be liberally granted.” (Centex Homes v. St. Paul Fire & Marine Ins. Co. (2015) 237 Cal.App.4th 23, 32.) “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 . . . 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, Inc. (1996) 47 Cal.App.4th 1024, 487.)

A motion to amend a pleading must include a copy of the proposed amendment or amended pleading which must be serially numbered to differentiate it from previous pleadings or amendments and must state what allegations in the previous pleading are proposed to be deleted or added, if any, and where, by page, paragraph, and line number, the allegations are located. (Cal. Rules of Court, Rule 3.1324(a).) The motion shall also be accompanied by a declaration attesting to the effect of the amendment, why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and why the request for amendment was not made earlier. (Cal. Rules of Court, Rule 1.324(b).)

Trial in this matter is set for April 30, 2019. Defendant argues allowing this amendment to add three additional causes of action on the eve of trial is highly prejudicial, as the causes of action are not based on the same underlying facts as the original complaint. The complaint involved a slip and fall in the defendant restaurant. The new causes of action allege the restaurant’s former owner, now deceased, placed secret cameras in the women’s’ restroom of the restaurant. Defendant argues Plaintiff’s motion does not comply with the California Rules of Court in explaining how long the facts underlying these new causes of action have been known to Plaintiff.

The Court agrees Plaintiff’s Motion does not meet the requirements of California Rules of Court, Rule 1.324(b). Plaintiff’s counsel’s declaration does not state the effect of the amendment, why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and why the request for amendment was not made earlier. This information is critical to determining whether Plaintiff was diligent (A.N. v. County of Los Angeles (2009) 171 Cal.App.4th 1058, 1067-1068), and whether these claims based on new facts are time barred or relate back to the original complaint (see Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1999-1200). The court may deny leave to amend where the statute of limitations has expired or the insufficiency of the amendment is established by controlling caselaw. (California casualty Gen. Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 280-281, disapproved on other grounds in Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390.)

Accordingly, the Motion for leave to amend is DENIED without prejudice.

Moving party to give notice.