Case Number: BC667551 Hearing Date: June 27, 2018 Dept: 4

MOVING PARTY: Plaintiff Dalia Gamboa

RESPONDING PARTY: Defendants Phenix Transportation, Inc. and Phenix Transportation West, Inc.

Motion for Leave to File First Amended Complaint

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

BACKGROUND

On July 10, 2017, plaintiff Dalia Gamboa, guardian ad litem for Joshua Seth Hernandez, filed a complaint against defendants Harris Nathan, Phenix Transportation Inc., and Phenix Transportation West Inc. regarding a motor vehicle incident that occurred on June 14, 2017.

Trial is set for January 10, 2019.

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 Dalia Gamboa requests leave to amend the complaint to allege that defendants Phenix Transportation West, Inc. and Phenix Transportation, Inc. were the alter egos of the corporations’ owners, Daphne P. Wilkerson and Richard Wilkerson. Plaintiff seeks to substitute the names of two individuals for Doe Defendants 31-32 and add an alter ego legal theory of liability as to defendant corporations. Plaintiff contends that information has been uncovered through formal and informal discovery to suggest that defendant corporations were used as mere corporate shells and are not and were never sufficiently capitalized.

In opposition, defendants contend that allowing the amendment would prejudice defendants and that defendant Phenix Transportation, Inc. has taken responsibility for the incident and sought to compensate Mr. Hernandez in the maximum amount of its policy limits.

In reply, plaintiff claims that defendants have not shown prejudice.

Plaintiff complied with CRC Rule 3.1324. In light of the liberal policy in favor of amendment, the motion is GRANTED. Plaintiff is ordered to file her 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