Case Number: BC600756 Hearing Date: April 06, 2018 Dept: 92

CYNTHIA HATLEY,

Plaintiff(s),

vs.

KMART CORP., ET AL.,

Defendant(s).

Case No.: BC600756

[TENATATIVE] ORDER DENYING MOTION FOR JUDGMENT ON THE PLEADINGS; GRANTING ALTERNATIVE MOTION FOR LEAVE TO AMEND CROSS-COMPLAINT; CONTINUING MOTION TO BIFURCATE TO THE TIME OF TRIAL

Dept. 92

1:30 p.m.

April 6, 2018

1. Background Facts

Plaintiff, Cynthia Hatley filed this action against Defendant, Kmart Corporation for damages arising out of a slip and fall. Plaintiff filed her complaint on 11/10/15. Defendant filed its answer on 12/03/15. On 3/09/17, the Court granted Kmart’s motion for leave to file a cross-complaint against Kellermeyer Bergensons Services, LLC (“KBS”) for declaratory relief, indemnification, and related claims.

2. Motion for Judgment on the Pleadings

At this time, Kmart seeks judgment on the pleadings on its cause of action for declaratory relief against KBS, contending it is entitled to judgment as a matter of law on its claim that KBS is obligated to defend Kmart in this action.

The motion is denied. While Kmart cites authority for the position that “when a written instrument is attached to the pleading and properly incorporated therein by reference, the court may examine the exhibit and treat the pleader’s allegations of its legal effect as surplusage,” the context of this holding, from Lumbermens Mut. Cas. Co. v. Vaughn (1998) 199 Cal.App.3d 171, 178 is not applicable to this case. In Lumbermens, the plaintiff filed a complaint and attached the parties’ agreement as an exhibit. The complaint included the plaintiff’s interpretation of the parties’ contract. The defendant moved for judgment on the pleadings on the complaint, contending the face of the parties’ contract showed that the contract did not say what the plaintiff alleged. The court of appeals affirmed the defendant’s position, citing established law that the parties’ contract governs over any contrary interpretation asserted in the complaint.

In this case, Kmart is the party who filed the cross-complaint at issue, Kmart is the party who attached the contract, and Kmart is also the party seeking to have the court adjudicate, at the pleading stage, the merits of Kmart’s interpretation of the contract. Kmart does not cite any authority on point in this regard. The motion is therefore denied.

3. Alternative Motion for Leave to Amend

Kmart makes an alternative motion for leave to amend its cross-complaint to assert a cause of action for breach of contract against KBS. 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. The application for leave to amend should be made as soon as the need to amend is discovered. The closer the trial date, the stronger the showing required for leave to amend. If the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the Court has the discretion to deny leave to amend. Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490. Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, or added costs of preparation such as an increased burden of discovery. Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488.

This motion is made on the eve of trial. KBS has not, however, opposed the motion. It does not appear that the proposed amended complaint would greatly expand the issues to be presented at trial, or would necessitate a continuance of the trial date. In light of the lack of opposition and the strong policy in favor of leave to amend, the motion is granted.

Kmart is ordered to file a separate copy of its amended cross-complaint within five days.

4. Motion to Bifurcate

Kmart’s motion to bifurcate is continued to the time of trial. This Court orders that the bifurcation briefing be included in the trial binders in Tab B along with any motions in limine filed in the case.

Kmart properly sought a bifurcation order in advance of the trial date. See CCP §598 (court to issue order bifurcating case on noticed motion by the pretrial conference or, absent a pretrial conference, no later than 30 days in advance of trial). On the facts of this case, and given that in the Personal Injury Court system this case will be tried by a different court than the court ruling on this motion, this court finds it appropriate for the trial judge to determine whether bifurcation is warranted. In the PI Court system, the trial court rules on motions in limine, even those that significantly affect trial preparation. While this bifurcation request is not a motion in limine, the logic of having the trial judge determine it here is similar. Accordingly, motion is denied without prejudice.