2016-00196960-CU-PO

Anel Perez vs. Galt Joint Union School District

Nature of Proceeding: Motion to File Amended Answer

Filed By: Zimmerman, Robert H.

Defendant’s motion to amend answer to complaint is GRANTED.

This is a personal injury lawsuit arising out of an incident which occurred while plaintiff was at a spelling bee held at one of defendant’s schools. Defendant now seeks to amend its answer to add an affirmative defense based on the exclusive remedy of the worker compensation system. Trial is currently set to commence on 3/11/2019.

Defendant avers that around the end of October 2018, it discovered that it inadvertently failed to include this affirmative defense in its November 2016 answer to complaint (despite the fact defendant had raised this same defense by demurrer in August 2016 and reasserting it in subsequent motions for summary judgment). Contending that plaintiffs have long been aware of defendant’s theory this case is barred by the exclusive remedy of the worker compensation system, defendant maintains it should be permitted to amend its answer to cure this oversight.

Plaintiffs oppose, arguing that this motion is untimely and insufficient, the new defense will prejudice plaintiffs and defendant does not have standing to assert the affirmative defense at issue.

This motion to amend the answer will be granted in light of the vast body of law which holds that amendments to pleadings are to be granted with great liberality before trial and sometimes even during trial. (See, e.g., Huff v. Wilkins (2006) 138 Cal.App.4th 732, 736.) While there is authority indicating that leave to amend may be denied when there is both an unwarranted delay in seeking the amendment and resulting prejudice to the opposing party, neither exists in the present case. Although it is true that defendant has been advancing this worker compensation defense from the outset of this litigation over two years ago, the moving declaration adequately attests that defendant did not discover until the end of October 2018 the inadvertent omission of the exclusive remedy affirmative defense. The present motion to amend was brought promptly upon discovery of this oversight and thus, plaintiffs’ suggestion of an undue delay in excess of 24 months is based on a mischaracterization of the relevant time period which does not withstand judicial scrutiny.

Similarly, the court will reject plaintiffs’ claim of prejudice since it cannot be argued that they were somehow unaware of defendant’s reliance of the exclusive remedy defense, having already addressed it in various motions since the commencement of this suit.

While plaintiffs also assert that the upcoming trial date will now need to be vacated so they can challenge this new affirmative defense by demurrer, they remain free to decide whether a challenge to the affirmative defense is at this time more of a priority to them than proceeding to trial. The court acknowledges plaintiffs’ claim that the proposed new defense is invalid and/or inadequately pled but a trial court will not ordinarily consider such a challenge to the sufficiency of the proposed pleading in opposition to a motion to amend. Instead, plaintiffs’ remain free to challenge the adequacy of the new defense once the amended answer is served.

Finally, the court holds that the moving declaration satisfies the express requirements of CRC Rule 3.1324(b) inasmuch as it demonstrates (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. In short, the declaration explains defendant seeks to add the exclusive remedy as an affirmative defense which is believed to be valid; plaintiffs have long been aware of defendant’s position but was inadvertently omitted from defendant’s answer; without leave to amend, defendant will likely be barred from raising the defense at trial; and defendant brought the motion shortly after discovering in late October 2018 the defense was inadvertently omitted from the November 2016 answer. Defendant also need not comply with the requirements of Code of Civil Procedure §473(b) (i.e., showing mistake, inadvertence, surprise or excusable neglect) since defendant is clearly not here seeking relief from any judgment, dismissal, order or other proceeding taken against it and since such a showing is plainly not a requirement for merely obtaining leave to amend under §473(a).

Defendant shall file and serve the proposed amended answer to complaint as soon as possible but no later than 1/28/2019. Although not required by court rule or statute, defendant is directed to present a copy of this order when the amended answer is presented for filing.

This minute order is effective immediately. No formal order or other notice is required.

(Code Civ. Proc. §1019.5; CRC Rule 3.1312.)