2015-00187482-CU-PT

Hillary Christine Limb vs. City of Folsom

Nature of Proceeding: Motion to File Amended Answer

Filed By: Gurer, Gokalp Y.

Defendant and Cross-Complainant Cut of Folsom’s (“City”) motion for leave to amend its answer, or in the alternative, its cross-complaint is ruled upon as follows.

Overview and Procedural History

This is personal injury action. On January 5, 2015, Plaintiff was injured when a tall, metal, free standing rack system in the kitchen at the City’s Zoo fell on her. Plaintiff was working as a job coach for Cross-Defendant Northern California InAlliance (“InAlliance”), a company that provides training to adults with disabilities to help them integrate into the community.

On 3/25/2019, the City filed its answer to Plaintiff’s’ complaint. On 6/2/2016, City filed a cross-complaint against InAlliance and Summer Owens for indemnity, apportionment of fault, and declaratory relief. InAlliance failed to respond to the summons and cross-complaint, and on 9/24/2018, default was entered against it. InAlliance filed a motion for relief from default, which the Court granted on 7/23/2019.

Trial was originally scheduled for 7/29/2019. At trial assignment, the City and InAlliance requested a trial continuance. Trial is now scheduled for 2/10/2020.

The City now seeks leave to amend its answer, or in the alternative, its cross-complaint. The proposed amended answer amends the second affirmative defense for apportionment of damages to add the term “Cross-Defendants, or third parties, including but not limited to Northern California InAlliance and Summer Owens.” The City also desires to add two affirmative defenses for (1) Offset Based on Workers’ Compensation Benefits, and (2) Negligence of Others.

With respect to the alternative request for leave to amend the cross-complaint, the City desires to amend its declaratory relief cause of action to include an allegation of Offset Based on Workers’ Compensation Benefits. It will also amend its causes of action for indemnity and apportionment of fault to proceed against Summer Owens only, and remove InAlliance.

Plaintiff opposes. InAlliance did not file an opposition.

Analysis

According to the City, after the Court set aside InAlliance’s default, it has been meeting and conferring with InAlliance. The City has just discovered that its first two causes of action for (1) indemnity and (2) apportionment of fault against InAlliance are likely barred by Labor Code section 3864. (Declaration of Gokalp Gurer (“Gurer Decl.”), ¶ 3.) InAlliance has threatened to file a Motion for Judgment on the Pleadings. (Id.) With respect to the declaratory relief cause of action, the City’s research “has revealed that the City has the option of seeking declaratory relief by way of either a cause of action in its Cross-Complaint or as an affirmative defense in its Answer.” (Gurer Decl.,¶ 4.) Specifically, with declaratory relief, “the City seeks a judicial determination because, should InAlliance be found to be at least partially negligent, the City will be entitled to offset part of any damages award pursuant to Witt v. Jackson (1961) 57 Cal.2d 57, based on worker’s compensation benefits provided by InAlliance to Plaintiff.” (Id.) The City has decided to amend its answer rather than its cross-complaint because “InAlliance’s default was just removed and trial has been continued, InAlliance will need to conduct its own discovery and establish its own facts. This will needlessly and redundantly increase everyone’s legal fees, and potentially delay trial even further should InAlliance need extra time to conduct fact and expert discovery.” ( Id., ¶ 5.)

Plaintiff opposes, explaining that she will be prejudiced by allowing amendment of the answer because it “will enable the City to argue that Ms. Limb and her employer were comparatively negligent without the benefit of a defense from InAlliance. The only reason the defense seeks to amend its answer is because it did not properly research the cause of action it alleged against InAlliance.” (Opposition, 4:25-5:1.) She further argues that the City did not act diligently because a Witt v. Jackson defense is “common in personal injury litigation where the plaintiff was acting during the course and scope of her employment.” (Opposition, 5:16-18.) With respect to amending the cross-complaint, Plaintiff insists that the City “clearly made a strategic decision to sue InAlliance rather than pursuing a Witt v. Jackson defense. The City did not decide to change its strategy until InAlliance was allowed to enter the litigation. The City should be made to stand by the trial strategy it has pursued for the past three and a half years.” (Opposition, 5:21-24.)

CCP §473(a)(1) provides, in part, that “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 . . .

. . . 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.”

The Court, in its discretion, concludes that allowing the City to amend the cross-complaint is “just” and the better approach. In this regard, discovery may be obtained from InAlliance regarding any potential negligence with respect to the incident. Additionally, allowing the City to amend its declaratory relief cause of action will place the Witt v. Jackson offset at issue.

The motion for leave to file an amended answer is DENIED. The alternative motion to file an amended cross-complaint is GRANTED.

The City shall file and serve the first amended cross-complaint (“FAXC”) by no later than 10/3/2019. Response to be filed and served within 30 days thereafter, 35 days if the FAXC is served by mail. (Although not required by any statute or rule of court, the City is requested to attach a copy of the instant minute order to the FAXC to facilitate the filing of the pleading.)

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.

Moving counsel’s notice of motion does not provide notice of the Court’s tentative ruling system, as required by Local Rule 1.06. Moving counsel is directed to contact Plaintiff’s’ and InAlliance’s counsels and advise them of Local Rule 1.06 and the Court’s tentative ruling procedure and the manner to request a hearing. If moving counsel is unable to contact Plaintiff’s’ and InAlliance’s counsels prior to hearing, moving counsel is ordered to appear at the hearing in person or by telephone.