Case Number: SC120099 Hearing Date: April 18, 2014 Dept: 92

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

RICHARD JORDAN, ET AL.,
Plaintiff(s),
vs.
BRYAN SCOTT HALE, et al.,
Defendant(s).

Case No.: SC120099

[TENTATIVE] ORDER DENYING WITHOUT PREJUDICE PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT

Dept. 92
1:30 p.m. — #21
April 18, 2014

Plaintiff, Richard Jordan’s Motion for Leave to File First Amended Complaint is Denied without prejudice

1. Facts
Plaintiffs, Richard Jordan and Christele Durocher-Jordan filed this action against Defendants, Bryan Scott Hale, Brett Evan Davis, Estate Property Management Inc. dba Phoenician Estates, and Busby’s LLC for injuries that Plaintiff Richard Jordan sustained when he was attacked by Bryan Scott Hale and Brett Evan Davis, who are employees of Defendant Estate property Management, Inc., dba Phoenician Estates. In the complaint, Plaintiffs allege causes of action for Assault and Battery, IIED, Negligent Hiring and Retention, Negligence, and Loss of Consortium.
Plaintiff alleges that Defendants Hale and Davis were employed as movers for Phoenician Estates and were sent to Santa Monica to assist with moving a client’s home. On 9/22/11, Defendants Davis and Hale went to Busby’s, a bar in Santa Monica to drink. Thereafter, at 2:00 am, on 9/22/11, they left Busby’s and spotted Plaintiff Richard Jordan jogging, and while in the “course and scope of employment”, they snuck up behind Jordan and struck him on the back of the head and continued to brutally beat him with hand weights. Complaint ¶¶ 1-24.

2. Motion for Leave to File First Amended Complaint
Plaintiff has already asserted causes of action based on negligence against Defendant Estate Property Management, Inc. However, Plaintiff now seeks leave to add claims for assault and battery and IIED against Defendant Estate Property Management, Inc. Plaintiff contends that he recently became aware these causes of action may be asserted against these Defendants through responses to discovery and trial is still more than five months away and, therefore, there will be no prejudice.
In opposition to this motion, Defendant Estate Property Management, Inc. argues that Plaintiff’s motion is deficient in that they failed to attach the proposed copy of the FAC or a declaration by counsel stating why the amendment is necessary or reasons for the delay. CRC 3.1324. In addition, there is a pending motion for summary judgment, which addresses the vicarious liability allegations. Plaintiff already has alleged that Defendants acted in the “course and scope of their employment.” Amendment would not be proper because vicarious liability would not apply to a situation that occurred at 2:00 am in the morning where the actions of Defendants were not foreseeable. Lastly, Defendant contends that it will be prejudiced if this motion is granted.
The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading. (CCP §§473 and 576.) Judicial policy favors resolution of all disputed matters between the parties and, therefore, leave to amend is generally liberally granted. Ordinarily, the court will not consider the validity of the proposed amended pleading in ruling on a motion for leave since grounds for a demurrer or motion to strike are premature. However, the court does have discretion to deny leave to amend where a proposed amendment fails to state a valid cause of action as a matter of law and the defect cannot be cured by further amendment. (California Casualty General Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 281.)

Plaintiff initially asserted causes of action against Defendant Estate Property Management, Inc. for Negligent Hiring and Retention (third cause of action) and Negligence (fifth cause of action). However, any allegations regarding vicarious liability with respect to assault, battery and IIED against moving party would be different. The declaration of moving party attorney states that he recently became aware of facts to support these additional causes of action. (Decl., Castillo, ¶ 4) While Defendant may have already prepared the motion for summary judgment, the hearing on the motion has been continued to 12/15/14. Defendant cannot claim prejudice because Defendant has plenty of time to refile a motion addressing the vicarious liability issues with respect to assault, battery and IIED. As to the argument that the proposed allegations regarding vicarious liability cause of action would fail, ordinarily, the judge will not consider the validity of the proposed amended pleading. Kittredge Sports Co v Sup Ct (Marker, USA) (1989) 213 Cal.App.3d 1045, 1048. Arguably, Plaintiff will have a difficult time pleading facts supporting the proposition that the Defendants Hale and Davis were in the scope of their employment when they assaulted and battered Plaintiff at 2:00am. However, there is no proposed amended complaint to consider what facts Plaintiff seeks to plead.
Most critical to this motion is the fact that Plaintiff fails to include a copy of the proposed amended pleading with this motion or serve it upon Defendant. Pursuant to CRC 3.1424(a)(1), The motion must be accompanied by a copy of the proposed amended pleading, which must be serially numbered to distinguish it from the proper pleading. Plaintiff has not done this. As discussed above, it cannot be determined what facts Plaintiff seeks to assert, therefore, the motion must be denied without prejudice.

Dated this 18th day of April, 2014

Hon. Elia Weinbach
Judge of the Superior Court