Case Number: BC516183    Hearing Date: August 19, 2014    Dept: SEC

UNGER v. SARA LEE BAKERY GROUP, INC.
CASE NO.: BC516183
HEARING: 08/19/14

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TENTATIVE ORDER

Plaintiff MATTHEW UNGER’s motion for leave to amend is GRANTED. C.C.P. § 473(a).

The proposed First Amended Complaint, attached to the motion as Exhibit A, is DEEMED SERVED AND FILED as of the hearing date.

Plaintiff UNGER was employed at a commercial baking facility in Vernon, California. He was injured when he was utilizing a manual backup system with a lighting stick to ignite an industrial oven. In his complaint, he alleges causes of action for products liability, strict liability, negligence, etc. against several defendants. Plaintiff seeks an order allowing him to amend the pleading in several respects.

Plaintiff’s proposed First Amended Complaint alleges the proper names of defendants Sara Lee and Earthgrains, whose names were been modified through corporate succession. According to the moving papers, those defendants have stipulated to the filing of the FAC. Plaintiff also seeks to add as a party Jesus Castenada, who was allegedly responsible for making decisions pertaining to maintenance of the oven equipment.

Defendant The Henry Group opposes the subject motion because it has a summary judgment motion scheduled for hearing on September 16, 2014 (which was continued from August 2014 to accommodate the subject hearing). Defendant’s summary judgment motion was brought on the ground that it never owned, designed or repaired the industrial oven and that it had no duty to report any findings regarding the oven to Cal-OSHA. Plaintiff’s opposition is not yet due.

In the original complaint, plaintiff alleged that defendant The Henry Group negligently “designed, manufactured, constructed, assembled, inspected, modified and/or sold, and/or placed into the stream of commerce industrial ovens.” Comp., ¶32. Plaintiff also asserted a strict liability cause of action against The Henry Group, which is deleted from the FAC.

Plaintiff seeks to revise the negligence cause of action to one for “negligent undertaking.” He contends that information during discovery clarified The Henry Group’s role and that while it may not owe plaintiff a direct duty, it assumed a duty by virtue of its undertaking of inspection services. The (proposed) legal theories are somewhat different, but they are based on the same core facts. There is no statute of limitations issue, as the claim relates back to the original pleading.

Defendant also argues that the motion should be denied because there is no liability as a matter of law. A court may properly deny leave to amend where the proposed pleading substantively fails. See Edwards v. Superior Court (2001) 93 Cal.App.4th 172. The Court cannot ascertain the viability of plaintiff’s claim based on the allegations alone. In any event, amendments are liberally permitted because the substance of the claims can be challenged by way of a demurrer or other dispositive motion. See, e.g. Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045.

Defendant contends that the proposed negligence claims are derivative of the claims in the original complaint, such that plaintiff is merely seeking to avoid the summary judgment motion. Paz v. State of Calif. (2000) 22 Cal.4th 550. While there is some factual overlap, the proposed FAC makes clear the factual support for defendant’s alleged duty.

Defendant has not established that it will be prejudiced by the amendment. While it will like render the summary judgment motion moot, the Court notes that the motion was filed against the original complaint and early in the litigation before a significant amount of discovery was conducted. That should not preclude plaintiff from the ability to refine his pleadings. See Mabie v. Hyatt (1998) 61 Cal.App.4th 581; Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739. There does not appear to have been any undue delay on the part of plaintiff. No trial date has been set, so defendant will presumably be able to re-file its summary judgment motion. For those reasons, the motion is granted and the proposed FAC deemed served and filed