Preview
Electronically FILED by uperior Court of California, County of Los Angeles on 07/02/2019 10:39 AM Sherri R. Carter, Executive Officer/Clerk of Court, by S. Lopez,Deputy Clerk
GEORGE L. MALLORY, JR., ESQ. (SBN 86311)
GEORGE L. MALLORY, JR. & ASSOCIATES
1925 Century Park East, Suite 2000
Los Angeles, California 90067-2701
Telephone: (310) 788-5555
Facsimile: (310) 788-5570
Attorneys for Defendant
CITY OF INGLEWOOD
[Exempt from Filing Fee (Gov. Code § 6103)]
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES - CENTRAL DISTRICT
10 SPRING STREET COURTHOUSE
It LUIS LEON, CASE NO.: BC711291
12 Plaintiff, Assigned to: Department 2
13 vs. DEFENDANT CITY OF INGLEWOOD
Be NOTICE OF MOTION AND MOTION
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as FIRST AMENDED ANSWER; AND
17 Defendants. PROPOSED ORDER
18 Complaint Filed on June 25, 2018
Trial Date December 26, 2019
19 Date July 31, 2019
Time 1:30 p.m.
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21 RES. NO. 337109627634
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23 TO PLAINTIFF LUIS LEON AND HIS ATTORNEY OF RECORD:
24 PLEASE TAKE NOTICE that on July 31, 2019 at 1:30 p.m. of the above entitled Court,
25 located at 312 North Spring Street, Los Angeles, CA 90012 Defendant City of Inglewood, pursuant to
26 Code of Civil Procedure § 473{a), will move this Court for an Order granting Defendant Leave to file
27 \WWin-ck3t7ypéhfolglm'8135\Pleading\Mx for Leave to Amend Answer'Nte and Motion. wed
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DEFENDANT CO] NOTICE OF MOTION AND MOTION FOR ORDER GRANTING LEAVE TO FILE FIRST
AMENDED ANSWER
an Amended Answer, a copy of which is attached to this Notice of Motion (See Exhibit “A”) and
incorporated by reference. The Motion is made on the ground that the Amended Answer is necessary
to allege a meritorious defenses of (1) design immunity and (2) open and obvious condition not
pleaded in the original Answer, and is more fully set forth in the attached Declaration and supporting
Memorandum of Points and Authorities.
The Motion is based on this Notice of Motion, on the attached Declaration of Defendant’s
Counsel, George L. Mallory, Jr., on the pleadings and papers filed in this action, and on such other
evidence as may be submitted at the hearing.
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10 DATED: July 1, 2019 GEORGE L. MALLORY, JR. & ASSOCIATES
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13 Attorneys for Defendant
as CITY OF INGLEWOOD
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DEFENDANT COI NOTICE OF MOTION AND MOTION FOR ORDER GRANTING LEAVE TO FILE FIRST
AMENDED ANSWER
MEMORANDUM OF POINTS AND AUTHORITIES
I
INTRODUCTION
This action arises from Plaintiff Luis Leon’s (hereinafter “Plaintiff”, “Leon”, “Mr. Leon”)
lawsuit filed in the Los Angeles Superior Court, case number BC711291, on June 25, 2018, alleging
Premises Liability against Defendant City of Inglewood (hereinafter, “Defendant” or “City”).
According to Plaintiffs Complaint,
“Plaintiff was riding his bicycle westbound on Centinela Avenue. As he
approached Beach Avenue, his front tire went down into the storm grate
10 causing his body to go over his handle bars and land in the street.
11 Plaintiff suffered significant injuries including, but not limited to a
12 closed fracture of nasal bone, acute head injury, lacerations and
gs. 13 abrasions to his face, and multiple abrasions.” (Complaint, Prem. L-1, p.
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15 ‘Thereafter, on August 10, 2018, Defendant responded to Plaintiff's Complaint. On August 31,
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26 16 2018, Plaintiff filed his First Amended Complaint!. Defendant now moves this Court to grant leave to
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17 file its First Amended Answer to plead the defenses of (1) design immunity and (2) open and obvious
18 condition.
19 The Motion should be granted because:
20 1 Leave to amend the City’s Answer is in furtherance of justice in that it will allow
21 Defendant to present a meritorious affirmative defenses of design immunity and open and obvious
22 condition to Plaintiff's cause of action against the City for Premises Liability.
23 2. Defendant does not seek to delay or otherwise prejudice any party to the action.
24 Further, the Amended Answer will work no prejudice against Plaintiff, as it is anticipated that the
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‘The Amended Complaint was not mailed, electronically or otherwise, to Counsel for Defendant City.
27 \Win-ck3t7yp6hfolghm\8135\Pleading\Mx for Leave to Amend Answer\Ntc and Motion.wpd
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DEFENDANT COI NOTICE OF MOTION AND MOTION FOR ORDER GRANTING LEAVE TO FILE FIRST
AMENDED ANSWER
Amended Answer will be filed approximately six (6) months in advance of the scheduled trial date.
Thus, Plaintiff will have ample time to continue investigating the merits of his cause of action for
Premises Liability, and to further engage in the discovery process prior to trial, as necessary.
IL.
LEGAL AUTHORITY
The Court may grant leave to amend a pleading at any time. Pursuant to Code of Civil
Procedure § 473(a)(1): “[t]he Court may...in its discretion, after notice to the adverse party, allow,
upon any terms as may be just, an amendment to any pleading...”. Further, “[i]f the motion to amend is
timely made and the granting of the Motion will not prejudice the opposing party, it is error to refuse
10 permission to amend and where the refusal also results in a party being deprived of the right to assert a
1 meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.”
12 Morgan vy. Superior Court, (1959) 172 Cal. App.2d 527, 530 (citing Nelson v. Superior Court, 97
13 Cal.App.2d 78; In re Estate of Herbst, 26 Cal App.2d 249). Also, “it is an abuse of discretion to deny
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14 leave to amend where the opposing party was not misled or prejudiced by the amendment.” Kittredge
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15 Sports Co. v. Superior Court, (1989) 213 Cal.App.3d 1045, 1048 (citing Higgins v. Del Faro (1981)
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53 16 123 Cal. App.3d 558,564-565). Moreover, “it is irrelevant that new legal theories are introduced as
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17 long as the proposed amendments relate to the same general set of facts. Jd. at p. 1048 (citations
18 omitted); Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761 (denial of amendment, where no
19 prejudice was shown, was an abuse of discretion); Higgins v. Del Faro, supra, 123 Cal.App.3d 558,
20 564 (where no prejudice is shown to the adverse party, the liberal rule of allowance prevails).
ai iil.
22 THE COURT SHOULD GRANT DEFENDANT’S MOTION FOR LEAVE TO FILE AN
23 AMENDED ANSWER
24 The Court should grant the City’s Motion for Leave to file an Amended Answer. The
25 additional affirmative defenses of (1) design immunity and (2) open and obvious condition in the
26 proposed First Amended Answer (Exhibit “A”) is directly related to Plaintiff's asserted Premises
27 \Win-ck3¢7 vp6hfo\gim'\8135\Pleading\Mx for Leave to Amend Answer\Ntc and Motion.wpd
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DEFENDANT COI NOTICE OF MOTION AND MOTION FOR ORDER GRANTING LEAVE TO FILE FIRST
AMENDED ANSWER
Liability cause of action and are meritorious.
Moreover, the proposed First Amended Answer in no way prejudices Plaintiff because more
than sufficient time remains for which he can investigate, continue to engage in the discovery process,
or otherwise. Additionally, Plaintiff was apprised that Defendant reserved the right to allege additional
defenses via Defendant’s Answer to Plaintiff's original Complaint. In view of the aforementioned
reasons, this Court should grant the City’s Motion for Leave to file an Amended Answer.
IV.
CONCLUSION
For the foregoing reasons, leave to file the First Amended Answer is in furtherance of justice
10 and should be granted.
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12 DATED: July 1, 2019 GEORGE L. MALLORY, JR. & ASSOCIATES
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DEFENDANT COI NOTICE OF MOTION AND MOTION FOR ORDER GRANTING LEAVE TO FILE FIRST
AMENDED ANSWER
DECLARATION IN SUPPORT OF MOTION FOR ORDER GRANTING LEAVE TO FILE
AMENDED ANSWER.
1.1, GEORGE L. MALLORY, JR., am Counsel for Defendant City of Inglewood, in the action
of Luis Leon v. City of Inglewood, et al., Los Angeles Superior Court Case No. BC711291.
2. On August 10, 2018, I filed an Answer to Plaintiff's Complaint which contained a number
of affirmative defenses.
3 During the course of discovery in this action, it was discovered that Plaintiff's
Complaint is subject to the additional affirmative defenses of (1) design immunity and (2) open and
obvious condition.
10 4 Defendant did not assert the above-described affirmative defenses against Plaintiff at
i the time Defendant filed and served its Answer to the original Complaint due to the fact that the
12 existence of the facts, and supporting documentation, giving rise to the defense were not known to
13 Defendant.
ea i4 5 The affirmative defenses that Defendant seeks to assert in the Amended Answer are
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of 15 meritorious in that if proven, either would defeat any right to recovery Plaintiff might otherwise have
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17 I declare under penalty of perjury under the law of the State of California that the foregoing is
18 true and correct.
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20 Dated: July 1, 2019
GEORGE MALLORY, JR.
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DEFENDANT COI NOTICE OF MOTION AND MOTION FOR ORDER GRANTING LEAVE TO FILE FIRST
AMENDED ANSWER
EXHIBIT “A”
GEORGE L. MALLORY, JR., ESQ. (SBN 86311)
GEORGE L, MALLORY, JR. & ASSOCIATES
1925 Century Park East, Suite 2000
Los Angeles, California 90067-2701
Telephone: (310) 788-5555
Facsimile: (310) 788-5570
Attorneys for Defendant
CITY OF INGLEWOOD
[Exempt from Filing Fee (Gov. Code § 6103)]
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES - CENTRAL DISTRICT
10 SPRING STREET COURTHOUSE
1k LUIS LEON, CASE NO.: BC711291
12 Plaintiff, Assigned for all purposes to:
Hon. Patricia Nieto, Dept. 2
8 13
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17 Defendants. ) Complaint Filed: June 25, 2018
) Trial Date: December 26, 2019
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20 TO PLAINTIFF LUIS LEON AND HIS ATTORNEY OF RECORD:
21 Defendant CITY OF INGLEWOOD (hereinafter also referred to as “Defendant,” “Answering
22 Defendant,” or “this Answering Defendant”) hereby answers the unverified operative Complaint of
23 Plaintiff LUIS LEON for itself and itself only, as follows:
24 1 Defendant CITY OF INGLEWOOD is a public entity.
25 2. Pursuant to the provision of Section 431.30(d) of the California Code of Civil
26 Procedure, this Answering Defendant denies each and every allegation contained in Plaintiff's
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FIRST AMENDED ANSWER OF CITY OF INGLEWOOD TO THE OPERATIVE COMPLAINT OF
PLAINTIFF LUIS LEON
unverified operative Complaint, and each and every cause of action contained therein, and the whole
thereof; further answering said Complaint, this Answering Defendant denies that Plaintiff has been
injured or damaged in the sum alleged, or in any sum whatsoever.
FIRST AFFIRMATIVE DEFENSE
(Facts and Grounds for Liability not Stated in Government Claim)
3 Asa first, separate, and distinct affirmative defense to every cause of action set forth
and alleged by Plaintiff in his operative Complaint on file herein, this Answering Defendant alleges
that to the extent that the operative Complaint alleges facts and grounds for liability that are not
specified in the Government Claim of Plaintiff, Plaintiff is precluded from pursuing any and all causes
10 of action against this Answering Defendant that are based upon those facts and grounds.
11 SECOND AFFIRMATIVE DEFENSE
12 (Failure to State a Cause of Action)
Ba 13 4 Asa second, separate, and distinct affirmative defense to every cause of action set forth
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16 relief can be granted as against this Answering Defendant, or against any Defendant.
17 THIRD AFFIRMATIVE DEFENSE
18 (Expiration of Applicable Statute of Limitations - Code of Civil Procedure)
19 5 Asa third, separate, and distinct affirmative defense to every cause of action set forth
20 and alleged by Plaintiff in his operative Complaint on file herein, this Answering Defendant alleges
21 that each claim for relief set forth in Plaintiff's operative Complaint is barred by the applicable Statute
22 of Limitations, particularly Code of Civil Procedur: section 335.1 or former Code of Civil Procedur
23 section 340(5).
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FIRST AMENDED ANSWER OF CITY OF INGLEWOOD TO THE OPERATIVE COMPLAINT OF
PLAINTIFF LUIS LEON
FOURTH AFFIRMATIVE DEFENSE
(Expiration of Applicable Statute of Limitations - Government Code)
6 Asa fourth, separate, and distinct affirmative defense to every cause of action set forth
and alleged by Plaintiff in his operative Complaint on file herein, this Answering Defendant alleges
that each claim for relief set forth in Plaintiff's operative Complaint is barred by Government Code
section 945.6.
FIFTH AFFIRMATIVE DEFENSE
(Failure to State a Claim)
7 Asa fifth, separate, and distinct affirmative defense to every cause of action set forth
10 and alleged by Plaintiff in his operative Complaint on file herein, this Answering Defendant alleges
i that Plaintiff failed to state a claim against this Answering Defendant based on his failure to fully
12 comply with the applicable provisions of the Government Code, particularly, sections 901, 910, 911.2,
BL 13 915(a), and 915.4.
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17 and alleged by Plaintiff in his operative Complaint on file herein, this Answering Defendant alleges
18 that Plaintiff failed to comply with the claim filing requirements of the California Government Tort
19 Claims Act, Government Code sections 900 et seq., including, but not limited to, sections 901, 910,
20 910.4, 911.2, and 915(a).
21 SEVENTH AFFIRMATIVE DEFENSE
22 (Government Code section 815)
23 9. As a seventh, separate, and distinct affirmative defense to every cause of action set
24 forth and alleged by Plaintiffs in his operative Complaint on file herein, this Answering Defendant
25 alleges that as a public entity, the City of Inglewood is not liable for an injury, whether such injury
26 arises out of an act or omission of the public entity or a public employee or any other person, except as
27 \WWin-ck3t7/vp6hfo\gim\8135\Pleading\Mx for Leave to Amend AnswertAmended Answer to Complaint, wpd
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FIRST AMENDED ANSWER OF CITY OF INGLEWOOD TO THE OPERATIVE COMPLAINT OF
PLAINTIFF LUIS LEON
provided by statute. (California Government Code § 815).
EIGHTH AFFIRMATIVE DEFENSE
(Government Code section 820.2)
10. As an eighth, separate, and distinct affirmative defense to every cause of action set
forth and alleged by Plaintiff in his operative Complaint on file herein, this Answering Defendant
alleges that any public employee Defendant is not liable for an injury resulting from his/her act or
in him/her,
omission where the act or omission was the result of the exercise of the discretion vested
whether or not such discretion be abused. (California Government Code § 820.2).
NINTH AFFIRMATIVE DEFENSE
10 (Immunity of Public Entity where Public Employee is Immune)
11 11. Asa ninth, separate, and distinct affirmative defense to every cause of action set forth
12 and alleged by Plaintiff in his operative Complaint on file herein, this Answering Defendant alleges
an act or
Ss 13 that, as a public entity, the City of Inglewood is not liable for an injury resulting from
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17 (Unavoidable Accident)
18 12. Asa tenth, separate, and distinct affirmative defense to every cause of action set forth
i9 and alleged by Plaintiff in his operative Complaint on file herein, this Answering Defendant alleges
, if any,
20 that the alleged events, injuries, losses, and damages alleged in Plaintiff's operative Complaint
, and
21 were the result of an unavoidable accident insofar as this Answering Defendant is concerned
of
22 occurred without any negligence, want of care, fault, or other breach of duty to Plaintiff on the part
23 this Answering Defendant.
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28 NT OF
FIRST AMENDED ANSWER OF CITY OF INGLEWOOD TO THE OPERATIVE COMPLAI
PLAINTIFF LUIS LEON
ELEVENTH AFFIRMATIVE DEFENSE
(Mandatory Duties)
13. As an eleventh, separate, and distinct affirmative defense to every cause of action set
forth and alleged by Plaintiff in his operative Complaint on file herein, this Answering Defendant
alleges that any and all mandatory duties imposed upon this Answering Defendant, its agents or
employees, the failure of which allegedly created the condition at the time and place alleged in the
operative Complaint, were exercised with reasonable diligence; and therefore, this Defendant is not
liable to Plaintiff for the alleged injuries pursuant to California Government Code section 815.6.
TWELFTH AFFIRMATIVE DEFENSE
10 (Government Code Section 830.4)
11 14, As a twelfth, separate, and distinct affirmative defense to every cause of action set forth
12 and alleged by Plaintiff in his operative Complaint on file herein, this Answering Defendant alleges
13 that this Answering Defendant, pursuant to law, is not liable for any damages alleged in the operative
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17 (Government Code Section 830.8)
18 15. As a thirteenth, separate, and distinct affirmative defense to every cause of action set
19 forth and alleged by Plaintiff in his operative Complaint on file herein, this Answering Defendant
20 alleges that this Answering Defendant, pursuant to law, is not liable for any damages alleged in the
21 operative Complaint by reasons of the failure to provide regulatory traffic signals, signs, markings or
22 other devices, because of the provisions of California Government Code section 830.8.
23 FOURTEENTH AFFIRMATIVE DEFENSE
24 (Government Code section 835.4 - Reasonableness of Act or Omission)
25 16. Asa fourteenth, separate, and distinct affirmative defense to every cause of action set
26 forth and alleged by Plaintiff in his operative Complaint on file herein, this Answering Defendant
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FIRST AMENDED ANSWER OF CITY OF INGLEWOOD TO THE OPERATIVE COMPLAINT OF
PLAINTIFF LUIS LEON
alleges that any act or omission by this Answering Defendant was reasonable, and, therefore, this
Answering Defendant is not liable to Plaintiff regarding any injuries alleged in Plaintiff's operative
Complaint.
FIFTEENTH AFFIRMATIVE DEFENSE
(Compliance With Law By Defendant)
17. As a fifteenth, separate, and distinct affirmative defense to every cause of action set
forth and alleged by Plaintiff in his operative Complaint on file herein, this Answering Defendant
alleges that all the activities of this Answering Defendant were in compliance with all applicable
statutes, government regulations, and industry standards based upon such statutes, regulations, and
10 standards existing at the time alleged in the operative Complaint, and, therefore, this Answering
11 Defendant is absolved from any liability in this action.
12 SIXTEENTH AFFIRMATIVE DEFENSE
43 (Performance of All Duties)
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17 estopped to assert any cause of action against this Answering Defendant.
18 SEVENTEENTH AFFIRMATIVE DEFENSE
19 (Assumption of Risk)
20 19. Asa seventeenth, separate, and distinct affirmative defense to every cause of action set
21 forth and alleged by Plaintiff in his operative Complaint on file herein, this Answering Defendant
22 alleges that Plaintiff is completely barred from recovery under the doctrine of assumption of risk, on
23 the grounds that Plaintiff knew or should have known of the tisks involved in the actions that resulted
24 in his injuries and that he assumed the risks of those actions.
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FIRST AMENDED ANSWER OF CITY OF INGLEWOOD TO THE OPERATIVE COMPLAINT OF
PLAINTIFF LUIS LEON
EIGHTEENTH AFFIRMATIVE DEFENSE
(Contributory Negligence)
20. As an eighteenth, separate, and distinct affirmative defense to every cause of action set
forth and alleged by Plaintiff in his operative Complaint on file herein, this Answering Defendant
alleges that Plaintiff was careless and negligent in and about the matters alleged in the operative
Complaint, and that said carelessness and negligence on the part of the Plaintiff proximately and
legally contributed to the occurrence of the incident and to Plaintiff's alleged injuries, loss and/or
damage, if any. Therefore, any damages awarded to Plaintiff shal! be diminished in proportion to the
amount of fault attributed to Plaintiff.
10 NINETEENTH AFFIRMATIVE DEFENSE
IL (Sole Fault of Plaintiff)
12 21. As anineteenth, separate, and distinct affirmative defense to every cause of action set
13 forth and alleged by Plaintiff in his operative Complaint on file herein, this Answering Defendant
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Preview
Electronically FILED by uperior Court of California, County of Los Angeles on 07/02/2019 10:39 AM Sherri R. Carter, Executive Officer/Clerk of Court, by S. Lopez,Deputy Clerk GEORGE L. MALLORY, JR., ESQ. (SBN 86311) GEORGE L. MALLORY, JR. & ASSOCIATES 1925 Century Park East, Suite 2000 Los Angeles, California 90067-2701 Telephone: (310) 788-5555 Facsimile: (310) 788-5570 Attorneys for Defendant CITY OF INGLEWOOD [Exempt from Filing Fee (Gov. Code § 6103)] SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES - CENTRAL DISTRICT 10 SPRING STREET COURTHOUSE It LUIS LEON, CASE NO.: BC711291 12 Plaintiff, Assigned to: Department 2 13 vs. DEFENDANT CITY OF INGLEWOOD Be NOTICE OF MOTION AND MOTION Be aS FOR ORDER GRANTING LEAVE TO Rees 14 VS. yl Re FILE FIRST AMENDED ANSWER; gs MEMORANDUM OF POINTS AND me of ge 15 CITY OF INGLEWOOD, CITY OF LOS ) aé Bo ANGELES, COUNTY OF LOS ANGELES, ) AUTHORITIES; DECLARATION OF aie og 16 CAL TRANS, AND DOES | to 20 GEORGE L. MALLORY, JR.; PROPOSED as FIRST AMENDED ANSWER; AND 17 Defendants. PROPOSED ORDER 18 Complaint Filed on June 25, 2018 Trial Date December 26, 2019 19 Date July 31, 2019 Time 1:30 p.m. 20 21 RES. NO. 337109627634 22 23 TO PLAINTIFF LUIS LEON AND HIS ATTORNEY OF RECORD: 24 PLEASE TAKE NOTICE that on July 31, 2019 at 1:30 p.m. of the above entitled Court, 25 located at 312 North Spring Street, Los Angeles, CA 90012 Defendant City of Inglewood, pursuant to 26 Code of Civil Procedure § 473{a), will move this Court for an Order granting Defendant Leave to file 27 \WWin-ck3t7ypéhfolglm'8135\Pleading\Mx for Leave to Amend Answer'Nte and Motion. wed -1- DEFENDANT CO] NOTICE OF MOTION AND MOTION FOR ORDER GRANTING LEAVE TO FILE FIRST AMENDED ANSWER an Amended Answer, a copy of which is attached to this Notice of Motion (See Exhibit “A”) and incorporated by reference. The Motion is made on the ground that the Amended Answer is necessary to allege a meritorious defenses of (1) design immunity and (2) open and obvious condition not pleaded in the original Answer, and is more fully set forth in the attached Declaration and supporting Memorandum of Points and Authorities. The Motion is based on this Notice of Motion, on the attached Declaration of Defendant’s Counsel, George L. Mallory, Jr., on the pleadings and papers filed in this action, and on such other evidence as may be submitted at the hearing. Mit 10 DATED: July 1, 2019 GEORGE L. MALLORY, JR. & ASSOCIATES 11 12 Beat Aone JR. 13 Attorneys for Defendant as CITY OF INGLEWOOD 2q BS wy 14 ZBR 5 nee wECE oF ge 15 ge a32° 16 C8 a4 17 18 19 20 21 22 23 24 25 26 27 \Win-ck3t7vp6hfolghm\8135\Pieading\Mx for Leave to Amend Answer\Ntc and Motion. wpd -2- 28 DEFENDANT COI NOTICE OF MOTION AND MOTION FOR ORDER GRANTING LEAVE TO FILE FIRST AMENDED ANSWER MEMORANDUM OF POINTS AND AUTHORITIES I INTRODUCTION This action arises from Plaintiff Luis Leon’s (hereinafter “Plaintiff”, “Leon”, “Mr. Leon”) lawsuit filed in the Los Angeles Superior Court, case number BC711291, on June 25, 2018, alleging Premises Liability against Defendant City of Inglewood (hereinafter, “Defendant” or “City”). According to Plaintiffs Complaint, “Plaintiff was riding his bicycle westbound on Centinela Avenue. As he approached Beach Avenue, his front tire went down into the storm grate 10 causing his body to go over his handle bars and land in the street. 11 Plaintiff suffered significant injuries including, but not limited to a 12 closed fracture of nasal bone, acute head injury, lacerations and gs. 13 abrasions to his face, and multiple abrasions.” (Complaint, Prem. L-1, p. as 25 as Aess 14 4). pa BRE 15 ‘Thereafter, on August 10, 2018, Defendant responded to Plaintiff's Complaint. On August 31, Reg ge RE Be 26 16 2018, Plaintiff filed his First Amended Complaint!. Defendant now moves this Court to grant leave to 84 17 file its First Amended Answer to plead the defenses of (1) design immunity and (2) open and obvious 18 condition. 19 The Motion should be granted because: 20 1 Leave to amend the City’s Answer is in furtherance of justice in that it will allow 21 Defendant to present a meritorious affirmative defenses of design immunity and open and obvious 22 condition to Plaintiff's cause of action against the City for Premises Liability. 23 2. Defendant does not seek to delay or otherwise prejudice any party to the action. 24 Further, the Amended Answer will work no prejudice against Plaintiff, as it is anticipated that the 25 26 ‘The Amended Complaint was not mailed, electronically or otherwise, to Counsel for Defendant City. 27 \Win-ck3t7yp6hfolghm\8135\Pleading\Mx for Leave to Amend Answer\Ntc and Motion.wpd -3- DEFENDANT COI NOTICE OF MOTION AND MOTION FOR ORDER GRANTING LEAVE TO FILE FIRST AMENDED ANSWER Amended Answer will be filed approximately six (6) months in advance of the scheduled trial date. Thus, Plaintiff will have ample time to continue investigating the merits of his cause of action for Premises Liability, and to further engage in the discovery process prior to trial, as necessary. IL. LEGAL AUTHORITY The Court may grant leave to amend a pleading at any time. Pursuant to Code of Civil Procedure § 473(a)(1): “[t]he Court may...in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading...”. Further, “[i]f the motion to amend is timely made and the granting of the Motion will not prejudice the opposing party, it is error to refuse 10 permission to amend and where the refusal also results in a party being deprived of the right to assert a 1 meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” 12 Morgan vy. Superior Court, (1959) 172 Cal. App.2d 527, 530 (citing Nelson v. Superior Court, 97 13 Cal.App.2d 78; In re Estate of Herbst, 26 Cal App.2d 249). Also, “it is an abuse of discretion to deny Rs 3 & 26 BASe Sessa 14 leave to amend where the opposing party was not misled or prejudiced by the amendment.” Kittredge pe BRS aS 15 Sports Co. v. Superior Court, (1989) 213 Cal.App.3d 1045, 1048 (citing Higgins v. Del Faro (1981) Be a 53 16 123 Cal. App.3d 558,564-565). Moreover, “it is irrelevant that new legal theories are introduced as =xA 17 long as the proposed amendments relate to the same general set of facts. Jd. at p. 1048 (citations 18 omitted); Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761 (denial of amendment, where no 19 prejudice was shown, was an abuse of discretion); Higgins v. Del Faro, supra, 123 Cal.App.3d 558, 20 564 (where no prejudice is shown to the adverse party, the liberal rule of allowance prevails). ai iil. 22 THE COURT SHOULD GRANT DEFENDANT’S MOTION FOR LEAVE TO FILE AN 23 AMENDED ANSWER 24 The Court should grant the City’s Motion for Leave to file an Amended Answer. The 25 additional affirmative defenses of (1) design immunity and (2) open and obvious condition in the 26 proposed First Amended Answer (Exhibit “A”) is directly related to Plaintiff's asserted Premises 27 \Win-ck3¢7 vp6hfo\gim'\8135\Pleading\Mx for Leave to Amend Answer\Ntc and Motion.wpd -4- DEFENDANT COI NOTICE OF MOTION AND MOTION FOR ORDER GRANTING LEAVE TO FILE FIRST AMENDED ANSWER Liability cause of action and are meritorious. Moreover, the proposed First Amended Answer in no way prejudices Plaintiff because more than sufficient time remains for which he can investigate, continue to engage in the discovery process, or otherwise. Additionally, Plaintiff was apprised that Defendant reserved the right to allege additional defenses via Defendant’s Answer to Plaintiff's original Complaint. In view of the aforementioned reasons, this Court should grant the City’s Motion for Leave to file an Amended Answer. IV. CONCLUSION For the foregoing reasons, leave to file the First Amended Answer is in furtherance of justice 10 and should be granted. 11 Mf 12 DATED: July 1, 2019 GEORGE L. MALLORY, JR. & ASSOCIATES 13 as £5 ga 38 14 By: 7Eae GEO . MALLORY, JR. 45 ee 15 Attor 's for Defendant gs ge CITY OF INGLEWOOD R42 PRS aoe 16 Baa 17 18 19 20 21 22 23 24 25 26 27 WWin-ck3t7vp6hfolglm\8135\Pleading\Mx for Leave to Amend Answer\Ntc and Motion.wpd -5- DEFENDANT COI NOTICE OF MOTION AND MOTION FOR ORDER GRANTING LEAVE TO FILE FIRST AMENDED ANSWER DECLARATION IN SUPPORT OF MOTION FOR ORDER GRANTING LEAVE TO FILE AMENDED ANSWER. 1.1, GEORGE L. MALLORY, JR., am Counsel for Defendant City of Inglewood, in the action of Luis Leon v. City of Inglewood, et al., Los Angeles Superior Court Case No. BC711291. 2. On August 10, 2018, I filed an Answer to Plaintiff's Complaint which contained a number of affirmative defenses. 3 During the course of discovery in this action, it was discovered that Plaintiff's Complaint is subject to the additional affirmative defenses of (1) design immunity and (2) open and obvious condition. 10 4 Defendant did not assert the above-described affirmative defenses against Plaintiff at i the time Defendant filed and served its Answer to the original Complaint due to the fact that the 12 existence of the facts, and supporting documentation, giving rise to the defense were not known to 13 Defendant. ea i4 5 The affirmative defenses that Defendant seeks to assert in the Amended Answer are mY we ze of 15 meritorious in that if proven, either would defeat any right to recovery Plaintiff might otherwise have 3 eo =o 16 had. ga 17 I declare under penalty of perjury under the law of the State of California that the foregoing is 18 true and correct. 19 Ht 20 Dated: July 1, 2019 GEORGE MALLORY, JR. 21 22 23 24 25 26 27 \Win-ck3t7 vp6hfo\gln\8135\Pleading\Mx for Leave to Amend Answer'Ntc and Motion, wpd -6- DEFENDANT COI NOTICE OF MOTION AND MOTION FOR ORDER GRANTING LEAVE TO FILE FIRST AMENDED ANSWER EXHIBIT “A” GEORGE L. MALLORY, JR., ESQ. (SBN 86311) GEORGE L, MALLORY, JR. & ASSOCIATES 1925 Century Park East, Suite 2000 Los Angeles, California 90067-2701 Telephone: (310) 788-5555 Facsimile: (310) 788-5570 Attorneys for Defendant CITY OF INGLEWOOD [Exempt from Filing Fee (Gov. Code § 6103)] SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES - CENTRAL DISTRICT 10 SPRING STREET COURTHOUSE 1k LUIS LEON, CASE NO.: BC711291 12 Plaintiff, Assigned for all purposes to: Hon. Patricia Nieto, Dept. 2 8 13 &5 2& VS. FIRST AMENDED ANSWER OF ao e450 14 DEFENDANT CITY OF INGLEWOOD S Zee age hy < TO OPERATIVE COMPLAINT OF ) PLAINTIFF LUIS LEON KR o8 ae 15 CITY OF INGLEWOOD, CITY OF LOS sf Be ANGELES, COUNTY OF LOS ANGELES; ) 26 16 CAL TRANS; and DOES 1 to 20, ) a8 ) 17 Defendants. ) Complaint Filed: June 25, 2018 ) Trial Date: December 26, 2019 18 ) ) 19 20 TO PLAINTIFF LUIS LEON AND HIS ATTORNEY OF RECORD: 21 Defendant CITY OF INGLEWOOD (hereinafter also referred to as “Defendant,” “Answering 22 Defendant,” or “this Answering Defendant”) hereby answers the unverified operative Complaint of 23 Plaintiff LUIS LEON for itself and itself only, as follows: 24 1 Defendant CITY OF INGLEWOOD is a public entity. 25 2. Pursuant to the provision of Section 431.30(d) of the California Code of Civil 26 Procedure, this Answering Defendant denies each and every allegation contained in Plaintiff's wpd \Win-ck3t7vp6hfolghn\8135\Pleading\Mx for Leave to Amend Answer\Amended Answer to Complaint. 27 -1- 28 FIRST AMENDED ANSWER OF CITY OF INGLEWOOD TO THE OPERATIVE COMPLAINT OF PLAINTIFF LUIS LEON unverified operative Complaint, and each and every cause of action contained therein, and the whole thereof; further answering said Complaint, this Answering Defendant denies that Plaintiff has been injured or damaged in the sum alleged, or in any sum whatsoever. FIRST AFFIRMATIVE DEFENSE (Facts and Grounds for Liability not Stated in Government Claim) 3 Asa first, separate, and distinct affirmative defense to every cause of action set forth and alleged by Plaintiff in his operative Complaint on file herein, this Answering Defendant alleges that to the extent that the operative Complaint alleges facts and grounds for liability that are not specified in the Government Claim of Plaintiff, Plaintiff is precluded from pursuing any and all causes 10 of action against this Answering Defendant that are based upon those facts and grounds. 11 SECOND AFFIRMATIVE DEFENSE 12 (Failure to State a Cause of Action) Ba 13 4 Asa second, separate, and distinct affirmative defense to every cause of action set forth RS 2 25 aS 5238 14 and alleged by Plaintiff in his operative Complaint on file herein, this Answering Defendant alleges poe aS that Plaintiff's operative Complaint fails to allege facts sufficient to state a cause of action upon which g8 ue ofde 15 PSs qeaS ba ga 16 relief can be granted as against this Answering Defendant, or against any Defendant. 17 THIRD AFFIRMATIVE DEFENSE 18 (Expiration of Applicable Statute of Limitations - Code of Civil Procedure) 19 5 Asa third, separate, and distinct affirmative defense to every cause of action set forth 20 and alleged by Plaintiff in his operative Complaint on file herein, this Answering Defendant alleges 21 that each claim for relief set forth in Plaintiff's operative Complaint is barred by the applicable Statute 22 of Limitations, particularly Code of Civil Procedur: section 335.1 or former Code of Civil Procedur 23 section 340(5). 24 it 25 Mt 26 it 27 \\Win-ck3t7epShfolghm\8135\Ploading\Mx for Leave to Amend Answer\Amended Answer to Complaint, wpd -2- 28 FIRST AMENDED ANSWER OF CITY OF INGLEWOOD TO THE OPERATIVE COMPLAINT OF PLAINTIFF LUIS LEON FOURTH AFFIRMATIVE DEFENSE (Expiration of Applicable Statute of Limitations - Government Code) 6 Asa fourth, separate, and distinct affirmative defense to every cause of action set forth and alleged by Plaintiff in his operative Complaint on file herein, this Answering Defendant alleges that each claim for relief set forth in Plaintiff's operative Complaint is barred by Government Code section 945.6. FIFTH AFFIRMATIVE DEFENSE (Failure to State a Claim) 7 Asa fifth, separate, and distinct affirmative defense to every cause of action set forth 10 and alleged by Plaintiff in his operative Complaint on file herein, this Answering Defendant alleges i that Plaintiff failed to state a claim against this Answering Defendant based on his failure to fully 12 comply with the applicable provisions of the Government Code, particularly, sections 901, 910, 911.2, BL 13 915(a), and 915.4. aS 28 4S ao 14 SIXTH AFFIRMATIVE DEFENSE 5738 hog aECE 15 (Failure to Comply with Government Claims Statutes) OR 8S Pen Be 16 8 Asa sixth, separate, and distinct affirmative defense to every cause of action set forth ga 17 and alleged by Plaintiff in his operative Complaint on file herein, this Answering Defendant alleges 18 that Plaintiff failed to comply with the claim filing requirements of the California Government Tort 19 Claims Act, Government Code sections 900 et seq., including, but not limited to, sections 901, 910, 20 910.4, 911.2, and 915(a). 21 SEVENTH AFFIRMATIVE DEFENSE 22 (Government Code section 815) 23 9. As a seventh, separate, and distinct affirmative defense to every cause of action set 24 forth and alleged by Plaintiffs in his operative Complaint on file herein, this Answering Defendant 25 alleges that as a public entity, the City of Inglewood is not liable for an injury, whether such injury 26 arises out of an act or omission of the public entity or a public employee or any other person, except as 27 \WWin-ck3t7/vp6hfo\gim\8135\Pleading\Mx for Leave to Amend AnswertAmended Answer to Complaint, wpd -3- 28 FIRST AMENDED ANSWER OF CITY OF INGLEWOOD TO THE OPERATIVE COMPLAINT OF PLAINTIFF LUIS LEON provided by statute. (California Government Code § 815). EIGHTH AFFIRMATIVE DEFENSE (Government Code section 820.2) 10. As an eighth, separate, and distinct affirmative defense to every cause of action set forth and alleged by Plaintiff in his operative Complaint on file herein, this Answering Defendant alleges that any public employee Defendant is not liable for an injury resulting from his/her act or in him/her, omission where the act or omission was the result of the exercise of the discretion vested whether or not such discretion be abused. (California Government Code § 820.2). NINTH AFFIRMATIVE DEFENSE 10 (Immunity of Public Entity where Public Employee is Immune) 11 11. Asa ninth, separate, and distinct affirmative defense to every cause of action set forth 12 and alleged by Plaintiff in his operative Complaint on file herein, this Answering Defendant alleges an act or Ss 13 that, as a public entity, the City of Inglewood is not liable for an injury resulting from Re os 25 Boe 7TSk 88 14 omission of an employee of the public entity where the employee is immune from liability by statute. Re 45 Government Code § 815.2). ge so 15 ( California fae geez 234 16 TENTH AFFIRMATIVE DEFENSE Ss 17 (Unavoidable Accident) 18 12. Asa tenth, separate, and distinct affirmative defense to every cause of action set forth i9 and alleged by Plaintiff in his operative Complaint on file herein, this Answering Defendant alleges , if any, 20 that the alleged events, injuries, losses, and damages alleged in Plaintiff's operative Complaint , and 21 were the result of an unavoidable accident insofar as this Answering Defendant is concerned of 22 occurred without any negligence, want of care, fault, or other breach of duty to Plaintiff on the part 23 this Answering Defendant. 24 it 25 Mf 26 dit 27 ‘\WWin-ck3t7vp6hfo\gim\8135\Pleading\Mx for Leave to Amend Answer\Amended Answer to Complaint.wpd -4- 28 NT OF FIRST AMENDED ANSWER OF CITY OF INGLEWOOD TO THE OPERATIVE COMPLAI PLAINTIFF LUIS LEON ELEVENTH AFFIRMATIVE DEFENSE (Mandatory Duties) 13. As an eleventh, separate, and distinct affirmative defense to every cause of action set forth and alleged by Plaintiff in his operative Complaint on file herein, this Answering Defendant alleges that any and all mandatory duties imposed upon this Answering Defendant, its agents or employees, the failure of which allegedly created the condition at the time and place alleged in the operative Complaint, were exercised with reasonable diligence; and therefore, this Defendant is not liable to Plaintiff for the alleged injuries pursuant to California Government Code section 815.6. TWELFTH AFFIRMATIVE DEFENSE 10 (Government Code Section 830.4) 11 14, As a twelfth, separate, and distinct affirmative defense to every cause of action set forth 12 and alleged by Plaintiff in his operative Complaint on file herein, this Answering Defendant alleges 13 that this Answering Defendant, pursuant to law, is not liable for any damages alleged in the operative aS 28 ey: ao 14 Complaint by reasons of the failure to provide regulatory traffic signals, signs, markings or other “6B age gs 15 devices, because of the provisions of California Government Code section 830.4. ge PES g32 oy 16 THIRTEENTH AFFIRMATIVE DEFENSE s4 17 (Government Code Section 830.8) 18 15. As a thirteenth, separate, and distinct affirmative defense to every cause of action set 19 forth and alleged by Plaintiff in his operative Complaint on file herein, this Answering Defendant 20 alleges that this Answering Defendant, pursuant to law, is not liable for any damages alleged in the 21 operative Complaint by reasons of the failure to provide regulatory traffic signals, signs, markings or 22 other devices, because of the provisions of California Government Code section 830.8. 23 FOURTEENTH AFFIRMATIVE DEFENSE 24 (Government Code section 835.4 - Reasonableness of Act or Omission) 25 16. Asa fourteenth, separate, and distinct affirmative defense to every cause of action set 26 forth and alleged by Plaintiff in his operative Complaint on file herein, this Answering Defendant wpd \WWin-ck3t7 vp6hfo\gln\8135\Pleading\Mx for Leave to Amend Answer\Amended Answer to Complaint. 27 -5- 28 FIRST AMENDED ANSWER OF CITY OF INGLEWOOD TO THE OPERATIVE COMPLAINT OF PLAINTIFF LUIS LEON alleges that any act or omission by this Answering Defendant was reasonable, and, therefore, this Answering Defendant is not liable to Plaintiff regarding any injuries alleged in Plaintiff's operative Complaint. FIFTEENTH AFFIRMATIVE DEFENSE (Compliance With Law By Defendant) 17. As a fifteenth, separate, and distinct affirmative defense to every cause of action set forth and alleged by Plaintiff in his operative Complaint on file herein, this Answering Defendant alleges that all the activities of this Answering Defendant were in compliance with all applicable statutes, government regulations, and industry standards based upon such statutes, regulations, and 10 standards existing at the time alleged in the operative Complaint, and, therefore, this Answering 11 Defendant is absolved from any liability in this action. 12 SIXTEENTH AFFIRMATIVE DEFENSE 43 (Performance of All Duties) as £5 aa Sx 14 18. As a sixteenth, separate, and distinct affirmative defense to every cause of action set = hea yee sy ae za 58 15 forth and alleged by Plaintiff in his operative Complaint on file herein, this Answering Defendant 32 ni aS 83 16 alleges that it has fully performed all duties, if any, owed to Plaintiff, and Plaintiff is therefore ga 17 estopped to assert any cause of action against this Answering Defendant. 18 SEVENTEENTH AFFIRMATIVE DEFENSE 19 (Assumption of Risk) 20 19. Asa seventeenth, separate, and distinct affirmative defense to every cause of action set 21 forth and alleged by Plaintiff in his operative Complaint on file herein, this Answering Defendant 22 alleges that Plaintiff is completely barred from recovery under the doctrine of assumption of risk, on 23 the grounds that Plaintiff knew or should have known of the tisks involved in the actions that resulted 24 in his injuries and that he assumed the risks of those actions. 25 Mt 26 Mf 27 \Win-ck3t7 vp6hfo\ghun'81 35\Pleading\Mx for Leave to Amend Answer\Amended Answer to Complaint.wpd -6- 28 FIRST AMENDED ANSWER OF CITY OF INGLEWOOD TO THE OPERATIVE COMPLAINT OF PLAINTIFF LUIS LEON EIGHTEENTH AFFIRMATIVE DEFENSE (Contributory Negligence) 20. As an eighteenth, separate, and distinct affirmative defense to every cause of action set forth and alleged by Plaintiff in his operative Complaint on file herein, this Answering Defendant alleges that Plaintiff was careless and negligent in and about the matters alleged in the operative Complaint, and that said carelessness and negligence on the part of the Plaintiff proximately and legally contributed to the occurrence of the incident and to Plaintiff's alleged injuries, loss and/or damage, if any. Therefore, any damages awarded to Plaintiff shal! be diminished in proportion to the amount of fault attributed to Plaintiff. 10 NINETEENTH AFFIRMATIVE DEFENSE IL (Sole Fault of Plaintiff) 12 21. As anineteenth, separate, and distinct affirmative defense to every cause of action set 13 forth and alleged by Plaintiff in his operative Complaint on file herein, this Answering Defendant &s 28 ae wn AS 14 alleges that the injuries and damages alleged in Plaintiff's operative Complaint were legally, #88 ye Ry