Danielle Sue Blum vs California Department of Parks and Recreation

Case Number

22CV02412

Case Type

Hearing Date / Time

Fri, 11/03/2023 - 10:00

Nature of Proceedings

Motion: Leave to File Second Amended Complaint

Tentative Ruling

Danielle Sue Blum vs. California Department of Parks and Recreation 

Case No. 22CV02412

Hearing Date: November 3, 2023                                                       

MATTER:                Motion For Leave To File Second Amended Complaint

ATTORNEYS:        For Plaintiff Danielle Sue Blum: Russ W. Ercolani, Melissa L. Emerson, Westlake Injury Law

For Defendant the State of California, by and through the Department of Parks & Recreation: Rob Bonta, Christine E. Garske, Kelly T. Smith, Office of the Attorney General of California

TENTATIVE RULING:

For all reasons discussed herein, the motion of plaintiff for leave to file a second amended complaint is granted. Plaintiff shall file and serve the second amended complaint, in the form attached to plaintiff’s motion, on or before November 9, 2023.

Background:

On June 27, 2022, plaintiff Danielle Sue Blum (Blum) filed her original complaint in this matter alleging one cause of action against the California Department of Parks and Recreation (the Department) for dangerous condition of public property. On November 28, 2022, Blum filed a first amended complaint (the FAC) against the Department alleging the same sole cause of action for dangerous condition of public property. As alleged in the FAC, which is the operative pleading:

Between February 18, 2020, and March 4, 2020, the Department closed all traffic on Carpinteria State Park Road, south from the Palm Avenue entrance, for a construction project. During the period of construction, the Department cut off electricity at Carpinteria State Beach (the premises). As of February 4, 2021, one year after construction had begun, the Department had not turned the electricity back on causing a streetlight along the 4th Street bridge over the Carpinteria Creek to be non-functional.

On February 4, 2021, Blum was walking at the premises traveling along the 4th Street bridge over Carpinteria Creek when, due to inadequate lighting from the nonfunctional streetlight that had been turned off a year prior during a construction project, Blum could not see the end of the curb and fell off the sidewalk injuring her wrist. Blum suffered a fracture to her right wrist requiring surgical intervention.

The Department should have known when they turned off the electricity for the construction project that, almost an entire year after the completion of the project, the 4th Street bridge was dangerously dark because the streetlight was turned off. The Department’s negligent maintenance of the premises caused Blum to fall off the sidewalk curb and injure her wrist.

On December 9, 2022, the Department filed its answer to the FAC, generally denying its allegations and asserting seventeen affirmative defenses.

On September 20, 2023, the Department filed a notice and motion for summary judgment on the grounds that it cannot be liable for failure to provide lighting as a matter of law and that Blum does not contend nor is the sidewalk at issue a dangerous or peculiar condition that renders lighting necessary.

On September 21, 2023, Blum filed a motion for leave to file a second amended complaint (the proposed SAC). In support of the motion, Blum submits the declaration of her counsel, Melissa L. Emerson, who asserts that Blum seeks to amend the operative FAC to allege the height of the curb as an additional dangerous condition of public property, an issue which counsel asserts was recently raised for the first time at the deposition of Blum’s husband, Kyle Blum. (Note: Due to common surnames and to avoid confusion, the Court will refer to Blum’s husband by his first name. No disrespect is intended.)

Counsel declares that Kyle’s deposition, which was taken on July 13, 2023, was the first deposition taken in this matter and the first time that the issue of the curb height was raised. (Emerson Decl., ¶¶ 4, 6 & Exh. 2.) At his deposition, when asked by counsel for the Department whether Blum had said anything to him about the fall, Kyle testified that Blum “did mention how tall that curb is and that’s probably why it hurt when she fell off of it.” (Id. at ¶ 4 & Exh. 2 [p. 67, ll. 18-19].)

After Kyle’s deposition, Blum’s counsel consulted with an expert witness who informed counsel that a curb may constitute a dangerous condition if it exceeds 8.5 inches in height. (Emerson Decl., ¶ 7.) On August 18, 2023, counsel visited the site of Blum’s fall and took measurements at various parts along the curb on the 4th Street bridge. (Id. at ¶ 8.) Counsel’s measurements yielded heights of 9 and 10 inches along various points on the curb. (Ibid.) An expert inspection of the curb at the site of the fall arranged by Blum’s counsel took place on September 18, 2023. (Id. at ¶ 9.)

Counsel further declares that Blum presented her government claim on August 6, 2021, which alleges that “[t]he street light located on the 4th Street bridge which runs over Carpinteria Creek at Carpinteria State Beach was negligently maintained and caused [Blum] to fall and sustain injuries. The [Department] is responsible for maintenance, control and management of the street light, sidewalk, and walkways at or near the location of the fall. State Parks failed to adequately maintain the premises, resulting in a dangerous condition that posed a reasonably foreseeable risk of harm to persons on the premises.” (Emerson Decl., ¶ 10 & Exh. 3.)

Counsel also asserts that Blum’s present request for leave to file the proposed SAC “was not made earlier because the issue of the curb height had not previously been raised prior to the filing of suit or during discovery, and [counsel] required additional time to investigate this potential avenue of liability and consult with [Blum’s] expert.” (Emerson Decl., ¶ 13.)

Blum also submits the declaration of attorney Russ W. Ercolani in support of the motion. Mr. Ercolani declares that on September 7, 2023, after the Department filed its motion for summary judgment, he informed the Department’s counsel about the information provided by Blum’s expert regarding the height of the curb where Blum fell. (Ercolani Decl., ¶ 5.) Blum’s counsel offered to sign a stipulation to continue the trial date in this matter if counsel for the Department would stipulate to allow Blum to file a second amended complaint alleging the curb height as an additional dangerous condition. (Ibid.) On September 11, 2023, counsel for the Department informed Blum’s counsel that he would not stipulate to allow Blum to file a second amended complaint. (Id. at ¶ 6.)

The Department opposes the motion.

Analysis:

“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.” (Code Civ. Proc., § 473, subd. (a)(1).)

A trial court’s discretion to allow amendments to pleadings “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.) “Further, this liberal policy applies to amendments ‘ “at any stage of the proceedings, up to and including trial,” ’ absent prejudice to the adverse party. [Citation.]” (Tung v. Chicago Title Company (2021) 63 Cal.App.5th 734, 747.) “[I]t is a rare case in which ‘a court will be justified in refusing a party leave to amend his pleadings so that he may properly present his case.’ [Citations.] If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion. [Citations.]” (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530; see also Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 939.)

The proposed SAC changes the allegations of the FAC by adding paragraph 10 in which Blum alleges that “the curb for pedestrians along the 4th street bridge over Carpinteria Creek at the Carpinteria State Beach, at all times mentioned herein, measured as high as 10 inches at various points along the bridge”, and by adding allegations that the Department created the dangerous condition when it “built the sidewalk at an extreme height” and that a reasonable inspection of the curb in addition to the streetlight would have made the Department aware of the unsafe condition. (Emerson Decl., Exh. 1 [Proposed SAC at para. 10, para. 12 at ll. 10-11 & para. 14 at l. 23].) The proposed SAC also deletes the allegation that due to inadequate lighting, Blum “could not see the end of the curb[.]” (See FAC, ¶ 10, l. 4; cf. Proposed SAC, ¶ 11, l. 7 [also adding “in addition to the extreme height of the curb”].) All other allegations remain the same.

The motion complies with California Rules of Court, rule 3.1324(a) and (b). Based on the information provided in the motion with respect to Kyle’s deposition and Blum’s subsequent investigation of the curb height at the premises where Blum fell, the Court does not find that Blum unreasonably delayed in seeking leave to amend to assert the allegations described above. The Court further finds that, based on the information provided by Blum’s counsel, substantial justification exists to permit Blum to amend her operative pleading to present her case.

The Department contends that the proposed SAC is a “sham” pleading because Blum was aware of the curb and that the elevation of the sidewalk before she filed this action and before the Department filed its motion for summary judgment. By deleting the allegation that Blum could not see the end of the curb, the Department argues, Blum is attempting to evade its motion for summary judgment which is based on a public entity’s lack of liability for street lighting.

“Under the sham pleading doctrine, plaintiffs are precluded from amending complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrers or motions for summary judgment. [Citations.]…‘The policy against sham pleadings requires the pleader to explain satisfactorily any such omission.’ [Citation.] [However,], [t]he sham pleading doctrine is not ‘intended to prevent honest complainants from correcting erroneous allegations ... or to prevent correction of ambiguous facts.’ [Citation.] Instead, it is intended to enable courts ‘to prevent an abuse of process.’ [Citation.]”  (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425–426, original italics, fn. omitted.)

The Court has reviewed the allegations that are omitted from and added to paragraph 11 of the proposed SAC. Though the proposed SAC omits the allegation that Blum was unable to see the end of the curb, paragraph 11 also alleges that Blum fell off the sidewalk due to inadequate lighting from the nonfunctional streetlight as well as the height of the curb. Therefore, the proposed SAC does not entirely omit the allegations regarding a lack of adequate street lighting that the Department contends are harmful or insufficient as a matter of law as further addressed in the Department’s motion for summary judgment. In addition, Blum’s explanation regarding the discovery of the height of the curb following Kyle’s deposition indicate that Blum seeks to remove allegations regarding whether she could see the end of the curb and add allegations regarding the height of the curb for the purpose of correcting ambiguous facts or erroneous allegations. For these reasons, the Court does not find that the proposed SAC constitutes a sham pleading.

In addition, as the proposed SAC includes the height of the curb from which Blum fell as an additional basis for liability for a dangerous condition of public property, the proposed SAC does not add substantially different allegations as the Department contends. Both the FAC and the proposed SAC allege that Blum fell of the sidewalk due to inadequate lighting. As the proposed SAC includes allegations that the height of the curb also constitutes a dangerous condition, the Court finds that the proposed amendments relate to the same general set of facts. (See Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 489 [proposed amendment seeking recovery for the same accident and injuries alleged in original complaint relates to the “same general set of facts”].)

The Department also argues that because Blum was aware of the curb at the premises and mentioned the height of curb to her husband when she fell, Blum unreasonably delayed seeking leave to amend. While Kyle’s testimony demonstrates that Blum commented on the height of the curb when she fell, there is no evidence to suggest that Blum knew or was aware of, either at the time of the fall or before Blum obtained an expert opinion as further discussed above, the actual height of the curb or whether the height of a curb may or may not constitute a dangerous condition as alleged in the proposed SAC. In addition, there is no evidence to suggest that the information presented in the Emerson declaration regarding the first time the curb height was raised as an issue, offered under penalty of perjury, is untrue. For these reasons and reasons discussed above, the Court does not find that Blum unreasonably delayed seeking leave to amend the FAC. Moreover, absent prejudice to the Department (further discussed below), amendments may be permitted at any stage of the proceedings. Therefore, delay alone is not a sufficient ground to deny the motion. (See Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 563–564.)

The Department also contends that it will be prejudiced by the granting of the motion because it has already filed a motion for summary judgment with respect to Blum’s claim that inadequate lighting constitutes a dangerous condition and has exhausted its statutory limits regarding discovery. The Department argues that, should the motion be granted, it will incur additional expert expenses, motion practice, and additional discovery required to defend against an entirely new theory of liability.

To the extent Blum had included in the original complaint the height of the curb as a basis for the theory of liability alleged in the original complaint, the Department would have nonetheless incurred the expenses and burdens addressed in the Department’s opposition. Therefore, that fact that the Department must now engage in discovery or motion practice with regard to this issue is not, in and of itself, sufficient to demonstrate prejudice.

The Court further notes that “a plaintiff wishing ‘to rely upon unpleaded theories to defeat summary judgment’ must move to amend the complaint before the hearing.” (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648.) Furthermore, “if summary judgment is granted on the ground that the complaint is legally insufficient, but it appears from the materials submitted in opposition to the motion that the plaintiff could state a cause of action, the trial court should give the plaintiff an opportunity to amend the complaint before entry of judgment.” (Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663.) As a plaintiff wishing to rely on an unpleaded theory to defeat summary judgment may and should move to amend the complaint before a court enters summary judgment on a legally insufficient complaint, the fact that the Department has already filed a motion for summary judgment based on the theory of liability alleged in the FAC is not sufficient to demonstrate prejudice should the motion be granted.

In addition, to the extent it is necessary for the Department to conduct additional discovery relating to the height of the curb at the premises, such additional discovery on its face would appear reasonable. Further, Court records reflect that a trial confirmation conference in this matter is set for April 5, 2024. The Department has not offered any information to show that it will be unable to complete its investigation of the new factual allegations or that it cannot reasonably complete any necessary additional discovery with respect to the height of the curb within statutory time limits. (Cf. Garcia v. Roberts (2009) 173 Cal.App.4th 900, 910 [amendments to allege new facts during trial may result in prejudice because the opposing party is unable to investigate the validity of the factual allegations while engaged in trial].) To the extent the Department is unable to obtain discovery from Blum relating to Blum’s theory that the height of the curb constitutes a dangerous condition, the Department may file appropriate motions. For these additional reasons, the Department has not sufficiently shown that it will suffer prejudice should the motion be granted.

Regarding the Department’s contention that the government claim submitted by Blum does not identify the sidewalk curb height as a dangerous condition, the Department may test the legal sufficiency of Blum’s new or added allegations by other appropriate proceedings. (See Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 760 [“the better course of action [is] to allow [the Department] to amend the complaint and then let the parties test its legal sufficiency in other appropriate proceedings”].)

For all reasons discussed above, the Court finds that Blum has timely filed the motion which complies with the procedural requirements of California Rules of Court, rule 3.1324. Blum has presented sufficient grounds to permit Blum to amend the FAC. The Department has not sufficiently shown that the granting of the motion will prejudice the Department. Therefore, the Court will grant the motion for leave to file the proposed SAC.