CHRIS LANGER VS HERIBERTO ROMERO, ET AL.

Tentative Rulings

Case Number: 19STLC08074     Hearing Date: January 15, 2020    Dept: 94

Langer v. Romero, et al.

MOTION FOR LEAVE TO AMEND COMPLAINT

(CCP §§ 472; 473(a))

TENTATIVE RULING:

Plaintiff Chris Langer’s Motion to File First Amended Complaint is PLACED OFF CALENDAR.

ANALYSIS:

1. Background

On August 3, 2019, Plaintiff Chris Langer (“Plaintiff”) filed an action for violation of the Unruh Civil Rights Act against PVK Holdings, LLC and Heriberto Romero (“Romero”). Defendants have not yet filed an answer to the complaint, and Plaintiff has not submitted any proof of service demonstrating the Complaint has been served.

On September 27, 2019, Plaintiff filed the instant Motion to File First Amended Complaint (the “Motion”).

On December 16, 2019, Plaintiff filed a First Amended Complaint.

To date, no opposition or reply briefs have been filed.

The policy favoring amendment and resolving all matters in the same dispute is “so strong that it is a rare case in which denial of leave to amend can be justified. . . .” “Although courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial [citations], this policy should be applied only ‘where no prejudice is shown to the adverse party . . . . [citation]. A different result is indicated ‘where inexcusable delay and probable prejudice to the opposing party’ is shown. [Citation].” (Magpali v. Farmers Group (1996) 48 Cal.App.4th 471, 487 (emphasis added).) Where a proposed amendment opening an entirely new substantive area of injury on the eve of trial without any explanation for why the major change had not been made long before, denial of leave is appropriately ordered in the court’s discretion. (Id.)

Also, a motion for leave to file an amended pleading must comply with California Rules of Court, rule 3.1342, which requires a supporting declaration setting forth explicitly what allegations are to be added and where, and explicitly stating what new evidence was discovered warranting the amendment and why the amendment was not made earlier. The motion must also include (1) a copy of the proposed and numbered amendment, (2) specifications by reference to pages and lines the allegations that would be deleted and added, and (3) a declaration specifying the effect, necessity and propriety of the amendments, date of discovery and reasons for delay. (Cal. Rules of Court, rule 3.1324(a)-(b).)

As an initial matter, the Court notes that Plaintiff has not yet filed proofs of service for the Complaint or the instant Motion. “A summons is the process by which a court acquires personal jurisdiction over a defendant in a civil action. The form of a summons is prescribed by law, and this form must be substantially observed. [Citation.]” (MJS Enterprises, Inc. v. Superior Court (1984) 153 Cal.App.3d 555, 557.) In addition, failure to give notice of a motion is not only a violation of the statutory requirements but of due process. (Code Civ. Proc., § 1005; Jones v. Otero (1984) 156 Cal.App.3d 754, 757.)

Plaintiff filed the instant action seeking to amend its Complaint to remove the erroneously sued Romero, the former owner of the establishment Plaintiff claims violated the Unruh Civil Rights Act. (Mot., p. 1.) Plaintiff seeks to name the current owner, Miriam Nepomuceno. (Id.) However, Code of Civil Procedure, section 472 provides that “[a] party may amend its pleading once without leave of court at any time before the answer, demurrer, or motion to strike is filed…” (Code Civ. Proc., § 472.) Here, Plaintiffs have not previously amended their Complaint. In addition, Defendants have not yet filed an answer, demurrer, or motion to strike Plaintiff’s Complaint. Therefore, Plaintiff is not required to obtain permission from the Court to file the amendment. (Id.) Further, on December 16, 2019, Plaintiff filed a First Amended Complaint with the changes outlined in its Motion.

Accordingly, Plaintiff’s Motion is PLACED OFF CALENDAR.

For the foregoing reasons, Plaintiff Chris Langer’s Motion to File First Amended Complaint is PLACED OFF CALENDAR.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCdept94@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.