This case was last updated from Los Angeles County Superior Courts on 06/10/2019 at 06:31:47 (UTC).

DANIEL NYGREN VS ZEV TECHNOLOGIES INC ET AL

Case Summary

On 09/27/2016 DANIEL NYGREN filed a Personal Injury - Other Product Liability lawsuit against ZEV TECHNOLOGIES INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are HOLLY E. KENDIG and ELAINE LU. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5386

  • Filing Date:

    09/27/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Product Liability

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

HOLLY E. KENDIG

ELAINE LU

 

Party Details

Plaintiffs and Petitioners

NYGREN DANIEL

NYGREN AN INDIVIDUAL DANIEL

Defendants and Respondents

GLOCK INCORPORATION

RPT CONSULTING LLC

DBA-RALLY POINT TACTICAL

DOES 1 TO 30

ZEV TECHNOLOGIES INCORPORATION

ZEV TECHNOLOGIES-GLOCKWORX

SAFARILAND LLC DOE 1

TACTICAL DBA-RALLY POINT

ZEV TECHNOLOGIES INC. DBA GLOCKWORX

SAFARILAND LLC [DOE 1]

RPT CONSULTING LLC DBA RALLY POINT TACTICAL

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

FRAENKEL STUART R. ESQ.

NELSON & FRAENKEL LLP

BARENFELD GABRIEL SHANTI

FRAENKEL STUART R.

Defendant Attorneys

THE LEE LAW GROUP PC

CAVANAUGH YUKEVICH

EFTEKAR BOBBIE NAZANEEN

CASS PAUL DOUGLAS

NORTON GEOFFREY PAUL ESQ.

SMELSER STEVEN D. ESQ.

NORTON & MELNIK

HERRERA & JULLE LLP

KESSEL BART L. ESQ.

MARIALAKI YVONNE

CASS PAUL D.

NORTON GEOFFREY P.

KESSEL BART L.

JUELLE CARLOS R.

SMELSER STEVEN D.

EFTEKAR BOBBIE N.

 

Court Documents

REQUESTING SUPERIOR COURT?S RESPONSE TO QUESTIONS POSED BY THE SWEDISH DISTRICT COURT IN ITS SEPTEMBER 3, 2018 INJUNCTION

9/20/2018: REQUESTING SUPERIOR COURT?S RESPONSE TO QUESTIONS POSED BY THE SWEDISH DISTRICT COURT IN ITS SEPTEMBER 3, 2018 INJUNCTION

Notice

2/14/2019: Notice

Declaration

6/6/2019: Declaration

Proof of Service

1/25/2018: Proof of Service

PLAINTIFF'S REPLY TO ZEV TECHNOLOGIES' RESPONSE TO MOTION FOR ISSUANCE OF A REQUEST FOR JUDICIAL ASSISTANCE (LETTER OF REQUEST) UNDER THE HAGUE CONVENTION ON THE TAKING OF EVIDENCE ABROAD IN CIVIL OR

3/8/2018: PLAINTIFF'S REPLY TO ZEV TECHNOLOGIES' RESPONSE TO MOTION FOR ISSUANCE OF A REQUEST FOR JUDICIAL ASSISTANCE (LETTER OF REQUEST) UNDER THE HAGUE CONVENTION ON THE TAKING OF EVIDENCE ABROAD IN CIVIL OR

NOTICE OF CASE MANAGEMENT CONFERENCE

3/20/2018: NOTICE OF CASE MANAGEMENT CONFERENCE

STIPULATION REGARDING PLAINTIFF'S MOTION FOR ISSUANCE OF REQUEST FOR JUDICIAL ASSISTANCE; ETC.

4/12/2018: STIPULATION REGARDING PLAINTIFF'S MOTION FOR ISSUANCE OF REQUEST FOR JUDICIAL ASSISTANCE; ETC.

Substitution of Attorney

10/19/2018: Substitution of Attorney

Order

10/22/2018: Order

DEFENDANT SAFARILAND, LLC'S REPLY BRIEF IN SUPPORT OF ITS DEMURRER TO PLAINTIFF'S COMPLAINT

2/6/2017: DEFENDANT SAFARILAND, LLC'S REPLY BRIEF IN SUPPORT OF ITS DEMURRER TO PLAINTIFF'S COMPLAINT

ORDER TRANSFERRING COMPLICATED PERSONAL INJURY (PI) CASE TO AN INDEPENDENT CALENDAR (IC) COURT

2/14/2017: ORDER TRANSFERRING COMPLICATED PERSONAL INJURY (PI) CASE TO AN INDEPENDENT CALENDAR (IC) COURT

SEPARATE STATEMENT IN SUPPORT OF DEFENDANT'S MOTION TO COMPEL PLAINTIFF DANIEL NYGREN TO PROVIDE FURTHER RESPONSES TO DEFENDANT'S REQUEST FOR PRODUCTION OF DOCUMENTS, SET NO. ONE; ETC

5/18/2017: SEPARATE STATEMENT IN SUPPORT OF DEFENDANT'S MOTION TO COMPEL PLAINTIFF DANIEL NYGREN TO PROVIDE FURTHER RESPONSES TO DEFENDANT'S REQUEST FOR PRODUCTION OF DOCUMENTS, SET NO. ONE; ETC

Minute Order

8/29/2017: Minute Order

DEFENDANT AND CROSS-DEFENDANT SAFARILAND, LLC'S ANSWER TO RPT CONSULTING, LLC'S CROSS-COMPLAINT

9/21/2017: DEFENDANT AND CROSS-DEFENDANT SAFARILAND, LLC'S ANSWER TO RPT CONSULTING, LLC'S CROSS-COMPLAINT

NOTICE OF CASE MANAGEMENT CONFERENCE

9/28/2017: NOTICE OF CASE MANAGEMENT CONFERENCE

DECLARATION OF GABRIEL S. BARENFELD IN SUPPORT OF OPPOSITION TO ZEV TECHNOLOGIES' MOTION TO COMPEL PLAINTIFF DANIEL NYGREN TO PROVIDE VERIFIED RESPONSES AND; ETC.

11/1/2017: DECLARATION OF GABRIEL S. BARENFELD IN SUPPORT OF OPPOSITION TO ZEV TECHNOLOGIES' MOTION TO COMPEL PLAINTIFF DANIEL NYGREN TO PROVIDE VERIFIED RESPONSES AND; ETC.

DECLARATION OF DANIEL NYGREN IN SUPPORT OF OPPOSITION TO ZEV TECHNOLOGIES' MOTION TO COMPEL PLAINTIFF DANIEL NYGREN TO PROVIDE VERIFIED RESPONSES AND TO PRODUCE TANGIBLE THINGS IN ACCORDANCE WITH REQU

11/1/2017: DECLARATION OF DANIEL NYGREN IN SUPPORT OF OPPOSITION TO ZEV TECHNOLOGIES' MOTION TO COMPEL PLAINTIFF DANIEL NYGREN TO PROVIDE VERIFIED RESPONSES AND TO PRODUCE TANGIBLE THINGS IN ACCORDANCE WITH REQU

Unknown

11/27/2017: Unknown

154 More Documents Available

 

Docket Entries

  • 06/06/2019
  • Declaration (of Bobby McGee in Support of Defendant Safariland ,LLC); Filed by Safariland, LLC [DOE 1] (Defendant)

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  • 06/06/2019
  • Declaration (of Steven D Smelser in Support of Safariland, LLC); Filed by Safariland, LLC [DOE 1] (Defendant)

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  • 06/06/2019
  • Separate Statement; Filed by Safariland, LLC [DOE 1] (Defendant)

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  • 06/06/2019
  • Declaration (of Scott Carnahan in Support of Defendant Safariland ,LLC); Filed by Safariland, LLC [DOE 1] (Defendant)

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  • 06/06/2019
  • Motion for Summary Judgment (, or in the Alternative, Summary Adjudication of the Issues); Filed by Safariland, LLC [DOE 1] (Defendant)

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  • 06/06/2019
  • Declaration (of Pontus Sorlin in Support of Defendant Safariland ,LLC); Filed by Safariland, LLC [DOE 1] (Defendant)

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  • 05/22/2019
  • Stipulation and Order (Stipulation Regarding Exceed Page Limit); Filed by Zev Technologies, Inc. (Defendant)

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  • 05/22/2019
  • Order (Order Regarding Exceed Page Limit); Filed by Zev Technologies, Inc. (Defendant)

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  • 05/15/2019
  • at 08:30 AM in Department 26, Elaine Lu, Presiding; Status Conference (Restatus of case) - Held

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  • 05/15/2019
  • Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

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308 More Docket Entries
  • 11/07/2016
  • Answer; Filed by Zev Technologies, Inc. (Defendant); Zev Technologies-Glockworx (Legacy Party); Glock, Incorporation (Defendant)

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  • 11/07/2016
  • ANSWER BY ZEV TECHNOLOGIES, INC. DBA GLOCKWORX (ERRONEOUSLY SUED HEREIN AS "ZEV TECHNOLOGIES, INC. DBA ZEV TECHNOLOGIES - GLOCKWORX") TO COMPLAINT

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  • 11/07/2016
  • Demand for Jury Trial; Filed by Zev Technologies, Inc. (Defendant); Zev Technologies-Glockworx (Legacy Party)

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  • 11/07/2016
  • SUMMONS CROSS-COMPLAINT

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  • 11/04/2016
  • Motion to Quash; Filed by RPT Consulting, LLC (Defendant)

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  • 11/04/2016
  • MOTION TO QUASH SERVICE OF SUMMONS FOR LACK OF PERSONAL JURISDICTION; ETC.

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  • 09/28/2016
  • SUMMONS

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  • 09/28/2016
  • Summons; Filed by Daniel Nygren, an Individual (Plaintiff)

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  • 09/27/2016
  • PLAINTIFF DANIEL NYGREN S COMPLAINT FOR: I. STRICT PRODUCTS LIABILITY; ETC

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  • 09/27/2016
  • Complaint; Filed by Daniel Nygren, an Individual (Plaintiff)

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Tentative Rulings

Case Number: BC635386    Hearing Date: January 17, 2020    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Daniel Nygren,

Plaintiff,

v.

zev technologies inc., et al.

Defendants.

Case No.: BC635386

Hearing Date: January 17, 2020

[TENTATIVE] order RE:

Cross-defendant’s Motion to quash Service of the summons and cross-Complaint

Background

This case arises out of out of an alleged misfiring of a Glock pistol when it fell at a firing range, causing injury to Plaintiff Daniel Nygren (“Plaintiff”).[1] On September 27, 2016, Plaintiff filed this suit against defendants Zev Technologies, Inc. and RPT Consulting, LLC (“RPT”). On November 7, 2016, Defendant Zev Technologies (“Cross-Complainant”) filed a Cross-Complaint for indemnity, contribution, and apportionment of fault against Cross-Defendants ROES 1 through 100.

On August 3, 2017, Cross-Complainant filed a Roe amendment naming Cross-Defendant Leaf Supply & Services AB (“Cross-Defendant”) as ROE 1. On June 5, 2019, Cross-Complainant mailed the summons and Cross-Complaint to Cross-Defendant in Sweden.

On July 15, 2019, Cross-Defendant filed the instant motion specially appearing under CCP § 418.10(a)(1). On January 6, 2020, Cross-Complainant filed an opposition. Cross-Defendant filed a reply on January 10, 2020.

Legal Standard

Pursuant to CCP § 418.10(a)(1), a defendant may move to quash service of summons on or before the last day to plead in response to the complaint or within such further time as the court may allow for good cause.

“A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.” (Code Civ. Proc., § 410.10.) California’s jurisdiction over non-residents is thus limited only by Constitutional due process. (Sanders v. CEG Corp. (1979) 95 Cal.App.3d 779, 783.)

“On a motion to quash for lack of personal jurisdiction, the plaintiff bears the burden of establishing by a preponderance of the evidence that the defendant has such ‘minimum contacts’ with the forum state that being subjected to its jurisdiction will not offend traditional notions of fair play.” (Epic Communications, Inc. v. Richwave Technology, Inc. (2009) 179 Cal.App.4th 314, 326, citing DVI, Inc. v. Superior Court (2002) 104 Cal.App.4th 1080, 1089.)

“Under the minimum contacts test, “an essential criterion in all cases is whether the ‘quality and nature’ of the defendant's activity is such that it is ‘reasonable’ and ‘fair’ to require him to conduct his defense in that State.” (Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 268, quoting Kulko v. Superior Court of Cal. (1978) 436 U.S. 84, 92, quoting Int'l Shoe Co. v. Wash. (1945) 326 U.S. 310, 316.) “This criterion gives rise to two forms or categories of personal jurisdiction: general and specific. [Citation.] General jurisdiction exists where the defendant has such pervasive contacts with the forum state that it is fair to subject it to jurisdiction for all purposes. [Citation.]” (Epic Communications, Inc. v. Richwave Technology, Inc., supra, 179 Cal.App.4th at p. 327; see also Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 445; DVI, Inc. v. Superior Court (2002) 104 Cal.App.4th 1080, 1090, 1097.)

“Specific jurisdiction exists when, though the defendant lacks such pervasive forum contacts that he may be treated as present for all purposes, it is nonetheless proper to subject him to the forum state’s jurisdiction in connection with a particular controversy.” (Epic Communications, Inc. v. Richwave Technology, Inc., supra, 179 Cal.App.4th at p. 327.) For specific jurisdiction, “courts consider the ‘relationship among the defendant, the forum, and the litigation.’” [Citations.] A court may exercise specific jurisdiction over a nonresident defendant only if: (1) the defendant has purposefully availed himself or herself of forum benefits; (2) the controversy is related to or arises out of contacts with the forum; and (3) the assertion of personal jurisdiction would comport with fair play and substantial justice. (Pavlovich v. Superior Court, supra, 29 Cal.4th at p. 269.)

“‘Purposeful availment’ requires that the defendant ‘have performed some type of affirmative conduct which allows or promotes the transaction of business within the forum state.’ [Citation.] A contract with an out-of-state party does not automatically establish purposeful availment in the other party's home forum. [Citations.] Rather, a court must evaluate the contract terms and the surrounding circumstances to determine whether the defendant purposefully established minimum contacts within the forum. Relevant factors include prior negotiations, contemplated future consequences, the parties’ course of dealings, and the contract’s choice-of-law provision. [Citation.]” (Goehring v. Superior Court (1998) 62 Cal.App.4th 894, 907.)

“Resolution of the question of personal jurisdiction must be accomplished under certain evidentiary rules. First, when jurisdiction is challenged by a nonresident defendant, the burden of proof is upon the plaintiff to demonstrate that ‘minimum contacts’ exist between defendant and the forum state to justify imposition of personal jurisdiction. [Citation.] The plaintiff has the right to conduct discovery with regard to the issue of jurisdiction to develop the facts necessary to sustain this burden. [Citation.] Second, an unverified complaint has no evidentiary value in determination of personal jurisdiction [citation], but such pleading has limited cognizable significance as ‘a material fact, in that it defines the cause of action, the nature of which has some bearing upon the decision whether it is fair and reasonable to require the nonresident parties to appear and defend in this state. But the pleader has no burden of proving the truth of the allegations constituting the causes of action in order to justify the exercise of jurisdiction over nonresident parties.’ [Citation.] The plaintiff need only present facts demonstrating that the conduct of defendants related to the pleaded causes is such as to constitute constitutionally cognizable ‘minimum contacts.’ [Citation.]” (Mihlon v. Superior Court (1985) 169 Cal.App.3d 703, 710.)

Discussion

General Jurisdiction

Cross-Defendant argues that service of the summons and complaint should be quashed because Cross-Defendant is not a resident of the State of California and does not have sufficient minimum contacts to establish personal jurisdiction over it.

Cross-Defendant asserts that the Court does not have general jurisdiction in this matter because Cross-Defendant is a small business incorporated in Gothenburg, Sweden. (Andersson Decl., ¶ 2.) Nor is Cross-Defendant’s primary place of business within California. Rather, Cross-Defendant’s sole office is in Gothenburg, Sweden. (Ibid.) Further, approximately 99 percent of Cross-Defendant’s sales are to Swedish governmental entities. (Ibid.) In opposition, Cross-Complainant does not contend that this court does not have general jurisdiction over Cross-Defendant. Therefore, Cross-Defendant successfully shows that the Court does not have general jurisdiction over Defendant.

Specific Jurisdiction

Cross-Defendant also asserts that the Court lacks specific jurisdiction over Cross-Defendant in this matter because the events giving rise to this action occurred outside of California, and Cross-Defendant did not have sufficient contact with California to avail itself of the Court’s jurisdiction. Cross-Defendant’s evidence in support of these arguments is compelling. Cross-Defendant has only two full-time employees, and its sole office is in Gothenburg, Sweden. (Andersson Decl., ¶ 2.) Cross-Defendant has never advertised in California and does not solicit business in California. Since its formation in 2010, Cross-Defendant has only ever made 11 purchases from two different companies in California. (Andersson Decl., ¶ 3.) With regard to the trigger and firing mechanism in the gun that injured Plaintiff, Cross-Defendant purchased the products from Rally Point Tactical (“RPT”) located in Virginia Beach, Virginia pursuant to a purchase order that Cross-Defendant issued in Sweden to RPT in Virginia. Cross-Defendant had no dealings of any kind with anyone in California in connection with that purchase. (Andersson Decl., ¶ 4.)

In opposition, Cross-Complainant alleges that Cross-Defendant is subject to specific jurisdiction because it purposely contacted residents of the state of California. In support of this claim, Cross-Complainant submits a set of email communications and conversations in which Cross-Defendant knowingly “contacted a California product manufacturer for questions and clarifications related to the order it was placing through . . . , a distributor of [Cross-Complainant’s] products.” (Opposition, p.6:1-3.)

Even if the court were to accept these emails as evidence of purposeful contact with the State of California, the court is skeptical that these emails demonstrate that Cross-Defendant has availed itself of forum benefits. In this regard, the context of the emails is important. Cross-Complainant is a manufacturer of aftermarket gun trigger parts used in, among other guns, Glock firearms. Cross-Defendant is a Swedish purchaser. Cross-Defendant purchased Cross-Complainant’s component parts from RPT, of Virginia Beach, Virginia, a worldwide distributor of Cross-Complainant’s components, for delivery to Cross-Defendant’s customer, the Swedish Armed Forces. Thus, Cross-Defendant purchased Cross-Complainant’s products from a Virginia distributor for delivery to its customer in Sweden. It seems a stretch to characterize Cross-Defendant’s emails and other communication with Cross-Complainant seeking clarification from Cross-Complainant about its product as Cross-Defendant’s availment of forum benefits here.

Moreover, even assuming that the emails submitted by Cross-Complainant were deemed sufficient to establish availment of forum benefits, Cross-Complainant still fails to establish the second and third prong for establishing specific jurisdiction. As to the second prong, all the causes of actions of the Cross-Complaint, including indemnity, contribution, and apportionment, are based on the primary case. Therefore, the harm alleged in the Cross-Complaint arises out of the same events that occurred in Sweden as does the primary case. Notably, Cross-Defendant never entered into any contract with Cross-Complainant, and thus, the instant action does not arise out of any contract between Cross-Complainant and Cross-Defendant. Nor did Cross-Defendant manufacture or distribute any product that it could reasonably expect would enter the stream of commerce in California. As to the third prong, it seems neither fair nor reasonable to require Cross-Defendant to appear and defend in California where a gun part that Cross-Defendant purchased from a Virginia distributor for its Swedish client caused injury in Sweden. The Court finds that under these circumstances, this Court’s exercise of jurisdiction would not comport with fair play and substantial justice. Indeed, even Cross-Complainant appears to concede that the Court’s exercise of jurisdiction would be unreasonable under the circumstances of this case. (Opposition, pp. 6-8 [“As is set forth in Zev's Motion to Dismiss on Forum Nonconveniens grounds, now pending before this court, items 1-7 all support a finding that Sweden is the only appropriate forum. Zev cannot speak for Leaf, but asserts for itself that there exists essential facts that cannot be obtained in California litigation”].)

Accordingly, Cross-Defendant’s motion to quash for lack of personal jurisdiction is granted.

CONCLUSION AND ORDER

Specially Appearing Cross-Defendant Leaf Supply & Services AB’s motion to quash service of the Summons and Complaint is granted under CCP § 418.10. The Court finds that it lacks personal jurisdiction over Specially Appearing Cross-Defendant. The Court hereby dismisses without prejudice Zev Technologies, Inc.’s Cross-Complaint as to Specially Appearing Cross-Defendant Leaf Supply & Services AB.

Cross-Defendant Leaf Supply & Services AB is ordered to provide notice of this order and file proof of service of such on all parties in this action within 10 days of this order.

DATED: January 17, 2020 ___________________________

Elaine Lu

Judge of the Superior Court


[1] The Complaint does not state where the injury occurred, but the Declaration and Evidence provided to the Court indicate that it occurred in Sweden.

Case Number: BC635386    Hearing Date: October 28, 2019    Dept: 26

 

Superior Court of California

County of Los Angeles

Department 26

daniel nygren,

Plaintiff,

v.

zev technologies inc, et al.,

Defendants.

Case No.: BC635386

Hearing Date: October 28, 2019

[TENTATIVE] order RE:

motion to File Amended aNSWER

Background

This is a personal injury action which arises out of an injury resulting from the use of a 9mm Glock pistol which occurred on October 2, 2014. On September 27, 2016, Plaintiff Daniel Nygren (“Plaintiff’) filed a complaint against Defendants Zev Technologies, Inc. and RPT Consulting, LLC, and DOES 1-30, alleging causes of action for (1) strict products liability, and (2) negligence. On November 14, 2016, Plaintiff amended the complaint for a fictitious name and named Safariland, LLC (“Safariland”), in the place of DOE 1, as a Defendant.

On June 2, 2017, Safariland filed its answer to the complaint. On June 6, 2019, Safariland filed a motion for summary judgment or in the alternative summary adjudication. On August 21, 2019, Safariland filed a notice of withdrawal of the motion for summary judgment/adjudication. Thereafter, on October 1, 2019, Safariland filed an ex parte application for leave to amend its answer. On October 4, 2019, the court denied the ex parte application and ordered Safariland to file a motion for leave to amend its answer by October 4, 2019.

On October 4, 2019, Safariland filed its motion for leave to file an amended answer. On October 11, 2019, Plaintiff filed an opposition. On October 16, 2019, Safariland filed a reply.

REQUEST FOR JUDICIAL NOTICE

Safariland requests judicial notice of documents and records which have previously been filed with the court in this case. The court may take judicial notice of court records. (Cal. Evid. Code, § 452(d).) Accordingly, the court grants Safariland’s request for judicial notice.

LEGAL STANDARD

CCP §473(a)(1) states: “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.”

Judicial policy favors resolution of all disputed matters between the parties and, therefore, the courts have held that “there is a strong policy in favor of liberal allowance of amendments.” (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 296-97; see also Ventura v. ABM Industries, Inc. (2013) 212 Cal.App.4th 258, 268) [“Trial 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 where the adverse party will not be prejudiced.”].)

Pursuant to CRC 3.1324(a), a motion to amend must: (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered; and (2) state what allegations are proposed to be deleted from or added to the previous pleading and where such allegations are located. CRC 3.1324(b) requires a separate declaration that accompanies the motion, stating: (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 reason why the request for amendment was not made earlier.

DISCUSSION

Safariland moves to amend its Answer to include applicable statutory sections and California’s borrowing statute to its Twelfth Affirmative Defense for Statute of Limitations.[1] Safariland argues that it would be unduly prejudiced if leave to amend is not granted because Safariland would be prevented from litigating the matter on the merits. Safariland also argues that Plaintiff will not prejudiced by allowing the amendment because Plaintiff has been on notice that Safariland intended to raise a statute of limitations defense since the initial Answer was filed on June 2, 2017.

Safariland concedes that it inadvertently did not include the applicable statutes in support of its defense, but contends that it was first made aware of this error when raised by Plaintiff’s opposition to summary judgment, received by Safariland on August 16, 2019. (Sugapong Decl. ¶¶ 2-3.) Safariland’s counsel declares that after becoming aware of the issue, Safariland promptly engaged in meet and confer efforts to seek a stipulation for leave to amend the answer, but Plaintiff would not agree to such a stipulation. (Id. ¶ 3.) Safariland states that the purpose of the amendment is to include the applicable statutory sections which apply to its affirmative statute of limitations defense. (Id. ¶ 5.)

Plaintiff opposes on the grounds that Safariland provides no justification for seeking leave to amend and provides no reasonable excuse to explain why the inadvertent exclusion of the relevant statutes was not corrected until after Safariland moved for summary judgment and Plaintiff expended time and money to oppose the summary judgment motion. Plaintiff notes that after Safariland withdrew its summary judgment motion, Plaintiff’s counsel sought clarification from the defense on August 26, 2019. However, Plaintiff’s counsel did not receive a response until September 5, 2019 when defense counsel sent a letter and proposed amendment asking Plaintiff to stipulate to allow for leave to amend the answer. (Barenfeld Decl. ¶¶ 6-7.)

Plaintiff also argues that Safariland should not be permitted to file an amended answer because it has already filed a motion for summary judgment. Plaintiff notes that Safariland’s motion for summary judgment argued for the first time that Swedish law governed the applicable statute of limitations pursuant to California’s borrowing statute. (Barenfeld Decl. ¶ 4.) Plaintiff argues that there is an inconsistency in the record as to Safariland’s argument that its failure to include the borrowing statute was an inadvertent mistake because Safariland’s prior demurrer contended that California law governed the applicable statute of limitations for this matter.

  1. Substantive Issues

Here, Safariland does not provide substantial justification as to why it did not notice or correct the inadvertent exclusion of potentially applicable statutes of limitations, including California’s Borrowing Statute, CCP § 361. (Sugapong Decl. ¶ 3.) Courts have held that “a long deferred presentation of the proposed amendment without a showing of excuse for the delay is itself a significant factor to uphold the trial court's denial of the amendment” (Bedolla v. Logan & Frazer (1975) 52 Cal.App.3d 118, 136.)

However, even where there is an unreasonable delay in moving to amend, “it is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048. The law favors resolution of claims on their merits, even if a party made an inadvertent mistake. (see Mesler, supra, 39 Cal.3d at p. 296-97; see also Ventura, supra, 212 Cal.App.4th at p. 268.)

Here, Plaintiff has not shown how Plaintiff would be prejudiced by allowing Safariland to amend the answer. First, Plaintiff was put on notice of Safariland’s intention to bring statute of limitations defenses since Safariland filed the original Answer on June 2, 2017. (See Answer, p. 4:13-16, filed 6/2/17.) It is irrelevant that Safariland contended on a previous demurrer that the California Statute of limitations was applicable because parties may plead alternative theories that are inconsistent with one another. (see Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1403.) Further, within one month of discovering the mistake, defense counsel prepared an amended answer and met and conferred with Plaintiff’s counsel. (Barenfeld Decl. ¶ 6.) Moreover, trial is not set in this matter until June 15, 2020 and Plaintiff has sufficient time to prepare for Safariland’s potential statute of limitations defense.

Should leave to amend the answer be denied, Safariland would be prevented from presenting its defense on the merits, even though it intended to include a statute of limitations defense as provided in its original answer. (see Answer, p. 4:13-16, filed 6/2/17.) Therefore, the court finds that it serves the interest of judicial policy and justice to allow Safariland leave to file an amended answer.

  1. Procedural Defects

Although amendment may be proper, the court finds that Safariland’s motion does not comply with CRC Rule 3.1324(a) because Safariland’s motion for leave to amend does not include a copy of the proposed amendment and does not specifically state which allegations are proposed to be deleted, if any, and which allegations are proposed to be added to the previous pleading. (CRC Rule 3.1324(a).)

Pursuant to CRC Rule 3.1324(b), defense counsel’s declaration provides information as to the purpose and effect of the amendment, why it is necessary, when the issue was discovered, and why the request was not made earlier. (Sugapong Decl. ¶¶ 2-6.) However, Safariland must still provide a proposed amendment which conforms with the requirements of CRC Rule 3.1324(a).

As noted above, the court finds that it serves the interest of justice and public policy to allow Safariland to raise its defense on the merits. Therefore, the court continues the hearing to enable Safariland the opportunity to address any procedural issues with a proposed amended answer. Safariland is to file a proposed amended answer within 3 days of date of this order. Plaintiff may file and serve a supplemental opposition within 5 court days of service of Safariland’s amended answer. Safariland may file and serve a supplemental reply within 5 court days of service of Plaintiff’s supplemental opposition.

Accordingly, the court CONTINUES the motion for leave to file an amended answer to November 26, 2019 at 8:30 am.

Conclusion and order

For the foregoing reasons, the court CONTINUES Safariland’s Motion for Leave to File an Amended Answer to November 26, 2019. Safariland is to file a proposed amended answer within 3 days of date of this order. Plaintiff may file and serve a supplemental opposition within

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5 court days of service of Safariland’s amended answer. Safariland may file and serve a supplemental reply within 5 court days of service of Plaintiff’s supplemental opposition.

Moving Party is ordered to give notice of this order and file proof of service of such.

DATED: October 28, 2019 ___________________________

Elaine Lu

Judge of the Superior Court


[1] Safariland cites CCP §464 which states that the parties may be allowed, on motion, to make a supplemental complaint or answer alleging facts material to the case that occurred after the former complaint or answer. Here, Safariland seeks to add an additional legal theory in defense of this action. Therefore CCP §464 is inapplicable.