BRENDA SANCHEZ VS JOSE NAPOLEON GARCIA

Tentative Rulings

Case Number: BC660465    Hearing Date: February 07, 2020    Dept: 27

[TENTATIVE] ORDER RE: MOTION FOR LEAVE TO FILE AMENDED ANSWER

On February 4, 2019, plaintiff Margarito Garcia filed this action against defendant Los Angeles County Metropolitan Transportation Authority (“Defendant”) for injuries and damages arising from an automobile collision. Plaintiff filed a First Amended Complaint (“FAC”) on April 2, 2019 and Defendant filed its answer on May 6, 2019. On January 3, Defendant filed this motion for leave to file an amended answer. Defendant requests leave to assert an additional affirmative defense that the FAC is barred by the statute of limitations.

The Court may, in its discretion and after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading, including adding or striking out the name of any party, or correcting a mistake in the name of a party, or a mistake in any other respect. (Code Civ. Proc. § 473, subd. (a)(1).) “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.)

A motion to amend a pleading must include a copy of the proposed amendment or amended pleading and must state what allegations in the previous pleading are proposed to be deleted or added. (Cal. Rules of Court, Rule 3.1324(a).) The motion shall also be accompanied by a declaration attesting to the effect of the amendment, why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and why the request for amendment was not made earlier. (Cal. Rules of Court, Rule 1.324(b).)

Defendant argues defense counsel erroneously failed to assert the defense earlier. Defendant contends the action was commenced more than six months after Defendant mailed Plaintiff a notice of rejection of his claim for damages on August 9, 2018. Plaintiff argues he will suffer prejudice as litigation will be prolonged and he will incur more costs. Trial is currently scheduled for August 13, 2020. Allowing this amendment does not require continuing the trial date.

Accordingly, Defendant’s Motion is GRANTED.  Defendant is to file the amended answer within 10 days of the date of this order.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative.

Case Number: BC660465    Hearing Date: December 17, 2019    Dept: 4B

[TENTATIVE] ORDER RE: MOTION TO SET ASIDE DISMISSAL

On May 8, 2017, plaintiff Brenda Sanchez filed this action against defendant Jose Napoleon Garcia. On May 3, 2018, Plaintiff named Krystina Janelle Mellard as a Doe defendant and on May 17, 2018 filed a First Amended Complaint. The Court set a number of hearing dates for Plaintiff to file proofs of service of summons. On April 8, 2019, Plaintiff dismissed Jose Garcia. On October 8, 2019, Plaintiff’s counsel failed to appear at the OSC Re: Failure to File Proof of Service, and the Court dismissed the case. Plaintiff now moves to set aside the dismissal due to attorney fault.

“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473, subd. (b).) Application for this relief shall be made within a reasonable time, in no case exceeding six months, after judgment, dismissal, order, or proceeding was taken. (Ibid.) “[T]he court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (Ibid.)

Plaintiff’s counsel states counsel failed to appear due to a calendaring error. On Plaintiff served Krystina Janelle Mellard on June 29, 2019.

This Motion to set aside dismissal was timely filed within six months of dismissal and the Court finds dismissal was due to counsel’s excusable neglect. The Motion to set aside the October 8, 2019 dismissal is GRANTED and the action is reinstated. Trial is set for July 15, 2020 in Department 4B and the final status conference is set for July 1, 2020 in Department 4B.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT4B@lacourt.org indicating intention to submit on the tentative. The Court will be dark on Dec. 17, 2019. A party requesting argument should contact Dept. 4B for an alternate hearing date.