Case Number: BC630424 Hearing Date: June 27, 2018 Dept: 4

MOVING PARTY: Plaintiff Sidney Ruiz

RESPONDING PARTY: Defendant Santa Monica-Malibu Unified School District

Motion for Leave to File First Amended Complaint

The court considered the moving, opposition, and reply papers.

BACKGROUND

On August 16, 2016, plaintiff Sidney Ruiz filed a complaint against defendants Peter Lars, Cornerstone Photography, Santa Monica-Malibu Unified School District (“District”) for premises liability and general negligence. Plaintiff alleges that on August 13, 2015, he sustained a left knee injury after falling off a four-foot stage during a school’s picture day event with his daughter.

Trial is set for November 14, 2018.

LEGAL STANDARD

CCP § 473(a)(1) provides, in relevant part: “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.”

“This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.” Kittredge Sports Co. v. Superior Court (1989) 213 Cal. App. 3d 1045, 1047.

Under CRC Rule 3.1324(a), a motion to amend a pleading shall (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.

Under CRC Rule 3.1324(b), 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.

Even if a good amendment is proposed in proper form, a long, unwarranted and unexcused delay in presenting it may be a good reason for denial. In most cases, the factors for timeliness are: (1) lack of diligence in discovering the facts or in offering the amendment after knowledge of them; and (2) the effect of the delay on the adverse party. If the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the judge has 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.

DISCUSSION

Plaintiff Sidney Ruiz requests leave to amend his complaint to check the box entitled “Prem.L-4” in the Judicial Council form, which refers to “dangerous conditions of public property.” Plaintiff contends that plaintiff’s counsel did not check the box due to an oversight. Plaintiff asserts that the parties have been litigating the case as if plaintiff had alleged dangerous condition of public property. Plaintiff’s counsel noticed the oversight for the first time when defendant mentioned it in its motion for summary judgment. Plaintiff’s counsel states in his declaration that the delay in seeking leave to amend has been because of plaintiff’s counsel’s medical condition. Plaintiff argues that there would be no prejudice or surprise to defendant in allowing leave to amend, and that he would be severely prejudiced if he were not allowed to amend.

In the opposition, defendant contends that plaintiff has unduly delayed in seeking leave to amend. Defendant argues that it will be greatly prejudiced if plaintiff is allowed to amend, although it addressed dangerous condition in its MSJ. Defendant further argues that plaintiff’s claim was not preceded by a proper tort claim.

In the reply, plaintiff asserts that the proposed amendment will not cause defendant any prejudice or surprise. The allegations are the same.

Plaintiff complied with CRC Rule 3.1324. In light of the liberal policy in favor of amendment and plaintiff’s counsel’s declaration attesting that it was an inadvertent mistake, the motion is GRANTED.

Plaintiff is ordered to file his amended complaint within five days.

Plaintiff is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: June 27, 2018

_____________________________

Dennis J. Landin

Judge of the Superior Court