Case Number: BC607488 Hearing Date: March 15, 2018 Dept: 97

Superior Court of California
County of Los Angeles
Department 97

Estate of Tova Haimovitz,

Plaintiff,

v.

Menorah Housing Foundation, et al.,

Defendants.

Case No.: BC607488

Hearing Date: March 15, 2018

[TENTATIVE] order RE:

Plaintiff’S motion for leave to FILE A sECOND aMENDED cOMPLAINT

Background

Plaintiff Estate of Tova Haimovitz (“Plaintiff”) alleges that on October 16, 2014 Tova Haimovitz (“Decedent”) suffered injury after a trip and fall due to a dangerous condition on Defendant Menorah Housing Foundation’s (“Defendant”) property.

The complaint, filed January 20, 2016, alleges a single cause of action for premises liability. On February 9, 2016, Tova Haimovitz passed away. Plaintiff’s counsel moved to pursue a survivorship action and substituted Plaintiff’s successor in interest, Dana Haimovitz, as the plaintiff to continue this action. The Court granted the request to substitute on September 9, 2016. Plaintiff then filed a First Amended Complaint on November 15, 2016 reflecting that the Decedent’s estate, through her daughter, would be the successor in interest.

On February 9, 2018, Plaintiff filed the instant motion for leave to file a Second Amended Complaint (“SAC”) to add two causes of action: wrongful death and survivorship. Defendant opposes.

LEGAL STANDARD

CCP §473(a)(1) states: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.”

Judicial policy favors resolution of all disputed matters between the parties and, therefore, the courts have held that “there is a strong policy in favor of liberal allowance of amendments.” (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 296-97; see also Ventura v. ABM Industries, Inc. (2013) 212 Cal.App.4th 258, 268) [“Trial 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 where the adverse party will not be prejudiced.”].)

Pursuant to CRC 3.1324(a), a motion to amend must: (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered; and (2) state what allegations are proposed to be deleted from or added to the previous pleading and where such allegations are located. CRC 3.1324(b) requires a separate declaration that accompanies the motion, stating: (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.

DISCUSSION

Plaintiff seeks to amend the complaint to add wrongful death and survivorship causes of action because of newly discovered information. Plaintiff’s counsel states that the reason for the delay in seeking the proposed amendments “is because it took substantial time to complete the investigation and discovery in order to determine whether or not the original incident [was] the proximate and legal cause of the Decedent’s death.” (Terehova Decl., at ¶ 9.) Plaintiff contends that the two new causes of action are based on the facts and circumstances alleged in the original and First Amended Complaints. (Id. at ¶ 6.) Plaintiff has also attached a copy of the proposed SAC as Exhibit A.

Defendant argues in opposition that leave to amend should be denied because Defendant will be prejudiced by the late amendment. Defendant contends that the new claims will require more time to address the newly raised issues before trial and that Plaintiff’s new claims are “practically a whole separate law suit.” (Def. Opp., at pg. 3.) Defendant argues that Plaintiff has deprived Defendant of time for “meaningful discovery” by adding these claims into the current lawsuit instead of filing a separate suit. (Ibid.)

Here, the Court finds the liberal policy of allowing amendments to apply in this case. Plaintiff states sufficient grounds to show the reason for the delay and the reason for amendment. Decedent did not pass away immediately after the injuries sustained in this case. Therefore, it is reasonable for Plaintiffs to have needed time to properly investigate the claims and investigate whether the injuries sustained by Decedent in this case were related to her death over a year later.

Further, Defendant’s assertions of prejudice do not outweigh Plaintiffs’ strong interest in amending and the judicial policy in favor of resolution of all disputed matters between the parties in one action. First, the two new causes of action are based on the same facts and circumstances as the FAC. The theory of culpability against Defendant remains the same. The survival action and the wrongful death action do not change the underlying claim of premises liability. Further, this action was already proceeding as a survivorship action, and thus, the only cause of action that is “new” would be the wrongful death cause of action. Second, pursuant to the February 28, 2018 minute order continuing the trial to June 15, 2018, discovery was to be governed by the new trial date, and thus, discovery is still open in this case. Defendant may propound any discovery it deems is insufficiently developed to defend against the claims alleged in the proposed SAC.

Plaintiff’s motion complies with CRC 3.1324(a) and (b). The motion includes a copy of the proposed SAC (Mot. at Ex. A) and states what allegations Plaintiff seeks to add. Also, the motion is accompanied by the declaration of Evgenia Terehova, wherein she states the proposed facts that led to the request for amendment and that this was only discovered during the past few years of investigation.

Conclusion and order

Based on the above, the Court grants Plaintiff’s motion for leave to file a Second Amended Complaint. Plaintiff is ordered to file and serve the Second Amended Complaint within 10 days.

Plaintiff is ordered to give notice of this order.

DATED: March 15, 2018 ___________________________

Elaine Lu

Judge of the Superior Court