Case Number: BC513892    Hearing Date: September 02, 2014    Dept: 92

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

KIM NGUYEN,
Plaintiff(s),
vs.
CITY OF LOS ANGELES, ET AL.,
Defendant(s).

Case No.: BC513892

[TENTATIVE] ORDER DENYING MOTION FOR LEAVE TO AMEND

Dept. 92
1:30 p.m. — #30
September 2, 2014

Plaintiff, Kim Nguyen’s Motion for Leave to Amend is Denied.

Plaintiff, Kim Nguyen filed this action against Defendants, City of Los Angeles, J. Oh, and D. Shin for damages arising out of an incident that occurred when Plaintiff was arrested. Plaintiff alleges Defendants failed to properly seat belt her, and failed to ensure the rear door of the police car was property locked. Plaintiff alleges the door opened and she was ejected at a high rate of speed.

Plaintiff filed her original complaint on 7/03/13. She filed her operative First Amended Complaint on 8/01/13. The case is currently set for trial on 1/02/15.

At this time, Plaintiff moves for leave to add a cause of action for sexual battery against Defendants. Plaintiff seeks to allege that either Officer Oh or Officer Shin entered the back seat of the patrol car and touched and grabbed Plaintiff’s breasts, chest, and thighs, and pulled on her ears. Defendants oppose the motion, arguing Plaintiff mentioned the sexual battery in her government tort claim, but failed to pursue it in her original complaint, and any attempt to do so at this time is barred by the statute of limitations.

Pursuant to Martell v. Antelope Valley Hospital Medical Center (1998) 67 Cal.App.4th 978, 982, all complaints against a governmental entity must be filed within six months after rejection of the government tort claim. In Dominguez v. City of Alharmbra (1981) 118 Cal.App.3d 237, the court held that this statute of limitations applies to amending complaints to add new claims, as well as to the filing of original complaints.

Any reply to the opposition was due on or before 8/25/14. As of 8/27/14, the Court has not received any reply to the opposition. The Court finds the proposed cause of action for battery is time-barred, and the motion for leave to amend must be denied.

While not necessary to the denial of the motion, the Court notes that Plaintiff also failed to comply with CRC 3.1324(a) or (b). Rule 3.1324 provides:
(a) Contents of motion
A motion to amend a pleading before trial must:
(1)Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments;
(2)State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and
(3)State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.

(b) Supporting declaration
A separate declaration must accompany the motion and must specify:
(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 reasons why the request for amendment was not made earlier.

Plaintiff’s motion violates CRC 3.1324(a), in that it does not state, by page, paragraphs, and line number, what allegations are being added and deleted. More importantly, the motion violates 3.1324(b), in that the Declaration of Counsel attached to the motion addresses none of the requirements of 3.1324(b). The declaration merely indicates that a copy of the government tort claim is attached as Exhibit 1 and a copy of the proposed SAC is attached as Exhibit 2.

Notably, to the extent the motion attempts to discuss these requirements at all, at page 3, lines 5-7, Plaintiff argues that she has “conducted discovery” related to these proposed new allegations. The only discovery mentioned, however, is Plaintiff’s own deposition. Counsel fails to explain why he would not have had access to information gleaned from his own client’s deposition from the inception of the case.

As noted above, the motion is denied regardless of the CRC violation. The Court finds the CRC violation, however, to be an additional ground for denial of the motion.

Dated this 28th day of August, 2014

Hon. Elia Weinbach
Judge of the Superior Court