Motion for Leave to File First Amended Complaint (Judge James F. Rigali)

Lemieux v. City of Santa Maria, et. al.

On July 6, 2016, plaintiffs Gerald Lemieux and Marjorie Lemieux filed a complaint against City of Santa Maria for premises liability. Briefly, plaintiff Gerald Lemieux tripped on a crack in the sidewalk maintained by the City of Santa Mari (with an elevation that apparently exceeded 1.5 inches). Marjorie Lemieux claimed loss of consortium. Doe 1 was substituted with defendant Pacific Crest Estates Owners Association; Doe 2 was substituted with defendant Inland Pacific Builders, Inc.; Doe 3 was substituted with defendant LGA Architecture, Inc.; and Doe 4 was substituted with West Coast Arborists, Inc. All defendants have answered, and West Coast Arborists, Inc., has filed a cross-complaint for indemnity, which has been answered. Trial was continued from December 8, 2016, for ?approximately one year? ? although no date has been chosen.

On November 3, 2016, plaintiffs filed a motion for leave to file a first amended complaint. Plaintiff wants to add a new cause of action (second cause of action) for ?general negligence? against the named defendants. Additionally, plaintiff Marjorie Lemieux will be removed as a plaintiff. There is no opposition.

The general policy is to liberally allow amended pleadings so long as the motion is timely and the other party will not be prejudiced. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761 [liberal policy of amendment at any stage of trial only if other party not prejudiced]; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596 [?leave to amend must be liberally granted? if timely motion to amend].) Unjustified delay in filing the motion may be a ground for denying the motion. (P & D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1345.) Defendants do not claim prejudice or surprise. Further, there appears no unjustifiable delay, as the lawsuit was initiated on July 6, 2016, and the basis for the new cause of action came to light following the normal course of discovery (according to plaintiff). No trial date has been set. Accordingly, the court tentatively grants the motion for leave to file the first amended complaint, which will be deemed filed as of November 29, 2016.

Pursuant to California Rules of Court, 3.1308 (a)(1) and Santa Barbara County Superior Court Local Rule 1301(b), the court does not require a hearing; oral argument will be permitted only if a party notifies all other parties and the court by 4:00 p.m. (Department 2) the day before the hearing of the party?s intention to appear. This tentative ruling will become the ruling of the court if notice of intent to appear has not been given. If no hearing is held, plaintiff is directed to provide a notice of ruling to all parties. Plaintiff is directed to serve the filed first amended complaint on all parties.