Plaintiff’s Motion for Leave to Amend
LAW AND MOTION TENTATIVE RULINGS DATE: MAY 14, 2026 TIME: 8:30 A.M.
The Court is aware of an amicable settlement between the Association, Ms. Rubin, and the Resort. Those parties should be prepared to advise if Ms. Power will participate in that settlement. If not, parties should be prepared to provide a new hearing date for the Resort’s motions to compel Ms. Power’s discovery responses and describe to what degree the demurrer and motion for judgment on the pleadings involving her and/or Power West Properties, Inc. remain pending.
As for Intervenors, the Court anticipates ordering succinct briefing on the issue of what remains to be determined as to their interests in the event of a global or partial settlement by other parties. Deadlines and page limits for such supplemental briefing will be discussed at the hearing.
No. 25CV01250
LOMELI v. HOME DEPOT
PLAINTIFF’S MOTION FOR LEAVE TO AMEND
The motion is granted in part and denied in part, without prejudice.
Leave of court is required to amend any pleading except as provided by Code of Civil Procedure sections 472 and 474. A judge may, in furtherance of justice and on proper terms, allow the amendment of any pleading at any time, even after commencement of trial. (Code Civ. Proc., §§ 473, subd. (a), 576; Hong Sang Market, Inc. v. Peng (2018) 20 Cal.App.5th 474, 488 [leave to amend any pleading is entrusted to judge’s sound discretion].) Judges should generally be liberal in permitting amendments to pleadings. (Id.)
A judge should deny leave to amend only when the facts are undisputed and the nature of a claim is clear, but under the substantive law, no liability exists and no amendment would change the result. (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) Judges must consider factors of party conduct, potential prejudice to parties, timeliness of amendment, or unwarranted delay. (See
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Corp. (2005) 130 Cal.App.4th 1078, 1097-98.)
Plaintiff asserted he was struck by an AI powered inventory robot, causing injury while shopping at Home Depot. The complaint alleges strict products liability, negligence, breach of implied warranty of merchantability, breach of implied warranty of fitness for a particular purpose, and breach of express warranty against Home Depot and Zippedi, Inc.
On December 1, 2025, plaintiff’s counsel filed notice that plaintiff had passed away. According to this motion, plaintiff is survived by his two daughters, Jacqueline and Rosa Lomeli.
LAW AND MOTION TENTATIVE RULINGS DATE: MAY 14, 2026 TIME: 8:30 A.M.
They now seek to be substituted as his successors in interest in this action pursuant to Code of Civil procedure sections 377.20 and 377.13. The motion asserts that the proposed First Amended Complaint (“FAC”) does not add any new causes of action nor does it introduce any new theories of liability. The motion further asserts that plaintiff’s “death was not caused by the injuries sustained in the subject incident; the cause of death was acute renal failure.” (Mtn. at p. 3.) Confusingly, on page 10 of their motion, the moving parties state they do wish to add a wrongful death cause of action but that it is a change in form, not substance.
Attached to the motion are declarations from Jacqueline and Rosa Lomeli, plaintiff’s death certificate, and the proposed FAC which includes a cause of action for wrongful death pursuant to Code of Civil Procedure section 377.60. (Exs. B-D to Decl. of Beloryan.)
Defendant Home Depot filed an opposition, arguing that the Court may permit the substitution of successors in interest to continue the action but that the successors in interest should not be permitted to assert a wrongful death cause of action in this case. They argue that a wrongful death claim is a separate, statutorily created cause of action belonging to specific heirs and is not the same as the decedent’s personal injury claim.
No reply was filed.
“Except as otherwise provided by statute, a cause of action for or against a person is not lost by reason of the person's death, but survives subject to the applicable limitations period.” (Code Civ. Proc. § 377.20, subd. (a).) “On motion after the death of a person who commenced an action or proceeding, the court shall allow a pending action or proceeding that does not abate to be continued by the decedent's personal representative or, if none, by the decedent's successor in interest.” (Code Civ. Proc. § 377.31.)
Pursuant to Code of Civil Procedure section 377.32, subdivision (a) “[t]he person who seeks to commence an action or proceeding or to continue a pending action or proceeding as the decedent's successor in interest under this article, shall execute and file an affidavit or a declaration under penalty of perjury under the laws of this state stating all of the following:
(1) The decedent's name.
(2) The date and place of the decedent's death.
(3) ‘No proceeding is now pending in California for administration of the decedent's estate.’
(4) If the decedent's estate was administered, a copy of the final order showing the distribution of the decedent's cause of action to the successor in interest.
LAW AND MOTION TENTATIVE RULINGS DATE: MAY 14, 2026 TIME: 8:30 A.M.
(5) Either of the following, as appropriate, with facts in support thereof:
(A) ‘The affiant or declarant is the decedent's successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) and succeeds to the decedent's interest in the action or proceeding.’
(B) ‘The affiant or declarant is authorized to act on behalf of the decedent's successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) with respect to the decedent's interest in the action or proceeding.’
(6) ‘No other person has a superior right to commence the action or proceeding or to be substituted for the decedent in the pending action or proceeding.’
(7) ‘The affiant or declarant affirms or declares under penalty of perjury under the laws of the State of California that the foregoing is true and correct.’
(b) Where more than one person executes the affidavit or declaration under this section, the statements required by subdivision (a) shall be modified as appropriate to reflect that fact.
(c) A certified copy of the decedent's death certificate shall be attached to the affidavit or declaration.”
Here, each declarant states their name, when decedent passed away, that no other proceeding is now pending in California for the administration of plaintiff’s estate; and that no other person has a superior right to commence the action or proceeding or to be substituted for plaintiff in the pending action or proceeding. A copy of the certified death certificate is attached. The motion to substitute Jacqueline and Rosa Lomeli as successors in interest for plaintiff pursuant to Code of Civil Procedure section 377.31 is granted.
There are conflicting assertions in the moving papers concerning the proposed amendment to add a wrongful death cause of action. The motion asserts the FAC “does not add any new causes of action, does not change the underlying facts, does not introduce any new theories of liability ... .” (Mtn. at p. 4.) The moving papers maintain that plaintiff’s death was not caused by the injuries sustained in the incident but was caused by renal failure. (Mtn. at p. 3.) Despite these statements, the proposed FAC does include a new cause of action for wrongful death which asserts, in part, that the wrongful acts of the defendants “were a contributing and substantial factor in bringing about the death of Decedent Saul Lomeli... .” (FAC at ¶. 84.)
These issues were brought up in the opposition. No reply was filed by plaintiff to clear this discrepancy for the Court. Therefore, the Court is denying the request, without prejudice, to file a FAC which includes a cause of action for wrongful death.