BRADLEY STONE ET AL VS PALOS VERDES FAMILY AND IMMEDIATE MED

Tentative Rulings

Case Number: BC701442    Hearing Date: November 03, 2020    Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka Tuesday, November 3, 2020

Department B Calendar No. 14

PROCEEDINGS

Bradley Stone, et al. v. Palos Verdes Family and Immediate Medical Care, et al.

BC701442

1. Palos Verdes Family and Immediate Medical Care’s Motion for Leave to File Amended Answer

TENTATIVE RULING

Palos Verdes Family and Immediate Medical Care’s Motion for Leave to File Amended Answer is granted.

Pursuant to Cal. Rules of Court, Rule 3.1324(a): A motion for leave to amend must: “(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.”

Here, Defendant has adequately complied with Rule 3.1324(a). Defendant attached a copy of the proposed First Amended Answer. Then, Defendant’s counsel provided a detailed explanation of the additions and deletions by page and line number. (Decl. William Leamon Cummings (“Cummings”), page 2, lines 6-17.) While counsel did not set forth the paragraph numbers, this omission is excusable because the paragraph numbers can be easily gleaned.

Cal. Rules of Court, Rule 3.1324(b) also requires that the moving party submit a separate declaration specifying:

“(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.”

Defendant submitted a declaration setting forth facts to meet all the elements of Rule 3.1324(b)(1) to (4). Defendant has set forth facts outlining the effect of the amendment – adding a MICRA defense, why the amendment is necessary and proper – Defendant contends that Plaintiffs are asserting a professional negligence claim rather than a premises liability claim, when the facts were discovered – after reviewing the deposition testimony of Plaintiff’s treating psychologist which was served on March 11, 2020, and why the request was not made earlier - the motion was filed on April 1, 2020 shortly after the discovery of the facts in March 2020. (Decl. Cummings, pages 2-4.)

The bulk of the argument in opposition consists of Plaintiff’s contention that the proposed newly added defenses do not apply because the case is, in fact, a premises liability case and not a professional negligence case. In reviewing whether to grant or deny the instant motion, the Court is not typically concerned with determining the ultimate merits of the defenses. This will be determined by the trier of fact. In addition, the issue of whether the proposed newly amended pleading states sufficient facts to constitute a defense is generally left for the proper procedural mechanism to challenge the pleading. “[T]he preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings.” Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.

Plaintiff also argues that Defendant unreasonably delayed and should have been made more than 18 months ago. However, Defendant has adequately explained why it did not seek amendment earlier. There was a change in defense counsel and the facts relayed by the treating psychologist was not known until March 2020. In addition, Plaintiff has not articulated any substantial prejudice from the purported delay.

Therefore, Defendant’s motion for leave to file a First Amended Answer is granted.

Defendant is ordered to file and serve its proposed First Amended Answer within 3 days of this date.

Defendant is ordered to give notice of this ruling.

Case Number: BC701442    Hearing Date: July 28, 2020    Dept: 29

BC701442 Bradley Stone, et al v. Palos Verdes Family and Immediate Medical

Court Order Re: Transfer and Reassignment of Complicated Personal Injury (“PI”) Case to An Independent Calendar ("IC") Courtroom from Department 29, a PI Hub Court.

The Court's order Re: Transfer of Complicated Personal Injury Case to an Independent Calendar Court, is posted on the Court's website.

AFTER REVIEW OF THE FILE, THE COURT MAKES THE FOLLOWING ORDER:

Department 29 of the Personal Injury Court has determined that the above-entitled action is complicated based upon the number of pretrial hearings and/or the complexity of the issues presented.

At the direction of Department 1, this case is hereby ordered reassigned and transferred to the Southwest District, Torrance, the Honorable GARY TANAKA, Judge presiding in Department B, for all purposes except trial. Department 1 hereby delegates to the Independent Calendar Court the authority to assign the cause for trial to that Independent Calendar Court.

Hearing on the above motion and any pending motions or hearings, including trial or status conferences, will be reset, continued or vacated at the direction of the newly assigned Independent Calendar Court. (NOTE:  All hearings currently set in Department 29 of the Spring Street Courthouse are taken off calendar subject to being reset and notified by the receiving court Re:  New hearing dates.)

Judicial Assistant is directed to give notice to Plaintiff, who upon receipt of this notice, is ordered to give notice to all parties of record.

Case Number: BC701442    Hearing Date: November 12, 2019    Dept: 2

Defendant and Cross-Complainant Palos Verdes Family and Immediate Medical Care's Motion to Continue Trial is GRANTED in part.  Good cause has been shown for a three-month continuance of the trial.  The current dates for the Final Status and Trial are advanced to today's date and vacated.  The Court sets the following dates:

Final Status Conference:  June 30, 2020

Trial: July 14, 2020

The discovery and motion cut-offs and all related dates are to be calculated based on the new trial date. 

The moving party is ordered to give notice.