Judge: Ashfaq G. Chowdhury, Case: 23AVCV00544, Date: 2024-02-23 Tentative Ruling
Case Number: 23AVCV00544 Hearing Date: April 5, 2024 Dept: E
Hearing Date: 04/05/2024 – 8:30am
Case No. 23AVCV00544
Trial Date: 04/28/2025
Case Name: DIETRICH WILHELM GEORG LUSSE v. FRANCISCO JAVIER MARQUEZ, and
DOES 1-30 inclusive
[TENTATIVE
RULING ON MOTION FOR LEAVE TO AMEND]
RELIEF REQUESTED
“Plaintiff, Dietrich Wilhelm Georg Lusse, will and hereby does move the Court
for an order granting Plaintiff leave to amend the Complaint to include a claim
for punitive damages premised on Defendant’s willful decision to drive above
the speed limit and continue operating his vehicle with knowledge that the
vehicle would “slide” and lose control when he applied his brakes.
Plaintiff’s Motion is made pursuant
to Code of Civil Procedure sections 473, subdivision (a)(1), and 576 on the
following grounds:
• Plaintiff deposed Defendant on
January 31, 2024. There, Defendant testified that immediately before the
collision, his vehicle “slid” and he lost control of the vehicle when he
applied his brakes, but that this sliding had occurred before because his vehicle
is “heavy” and had previously slid when he applied his brakes.
• When asked how many times
Defendant’s car had actually slid and Defendant lost control of his vehicle as
a result of applying his brakes that night when he was driving on Angeles
Forest Highway, a winding, mountainous two-lane highway, Defendant stated that
it happened five times.
• Defendant then admitted he knew
that his car sliding when he applied his brakes was dangerous, and his car was
“behaving in an unsafe manner.” Despite this, Defendant chose to continue
driving and did not pull over despite having several opportunities to do so.
Defendant continued to drive through turns where he would slide and lose
control of his vehicle, yet he “chose to take that risk.”
• Defendant’s actions constitute a
“conscious disregard for the safety of others,” which supports a claim for
punitive damages. (See Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 89.)
• Plaintiff’s requested amendment is
timely sought in light of Defendant’s recently obtained testimony and will not
cause any surprise or prejudice to the defense in this matter.”
PRELIMINARY PROCEDURAL
Moving Party: Plaintiff, Dietrich
Wilhelm Georg Lusse
Responding Party: Defendant,
Francisco Javier Marquez
Proof of Service Timely Filed (CRC
Rule 3.1300(c)): Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Proper Address: Ok
Moving Papers: Motion; Proposed
Order
Opposition Papers: Opposition
Reply Papers: Reply
LEGAL STANDARD – LEAVE TO
AMEND
The
court may, in furtherance of justice and on any proper terms, allow a party to
amend any pleading. (Code Civ. Proc., § 473, subd. (a)(1); Branick v.
Downey Savings & Loan Association (2006) 39 Cal.4th 235,
242.) The court may also, in its discretion and 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); Branick, supra, 39 Cal.4th at
242.) Judicial policy favors resolution of all disputed matters between
the parties and, therefore, the courts have held that “there is a strong policy
in favor of liberal allowance of amendments.” (Mesler v. Bragg
Management Co. (1985) 39 Cal.3d 290, 296-97; see also Ventura v.
ABM Industries, Inc. (2013) 212 Cal.App.4th 258, 268) [“Trial courts
are bound to apply a policy of great liberality in permitting amendments to the
complaint at any stage of the proceedings, up to and including trial where the
adverse party will not be prejudiced.”].) Leave to amend
is thus liberally granted, provided there is no statute of limitations
concern. (Kolani v. Gluska (1998) 64
Cal.App.4th 402, 411.) The court may deny the plaintiff’s leave to
amend if there is prejudice to the opposing party, such as delay in trial, loss
of critical evidence, or added costs of preparation. (Id.)
Under California Rules of Court, rule 3.1324, a motion
to amend a pleading before trial must (1) include a copy of the proposed
amendment or amended pleading, which must be serially numbered to differentiate
it from previous pleadings or amendments; (2) state what allegations in the
previous pleading are proposed to be deleted, if any, and where, by page,
paragraph and line number, the deleted allegations are located; and (3) state
what allegations are proposed to be added to the previous pleading, if any, and
where, by page, paragraph, and line number, the additional allegations are
located. (Cal. Rules of Court, rule 3.1324(a).)
Further, a separate supporting declaration must
accompany the motion and must specify (1) the effect of the amendment; (2) why
the amendment is necessary and proper; (3) when the facts giving rise to the
amended allegations were discovered; and (4) the reason why the request for
amendment was not made earlier must accompany the motion. (Id., rule
3.1324(b).)
PROCEDURAL ANALYSIS
CRC 3.1324(a)
Under California Rules of Court, rule 3.1324, a motion
to amend a pleading before trial must:
(1) include
a copy of the proposed amendment or amended pleading, which must be serially
numbered to differentiate it from previous pleadings or amendments;
Here, Plaintiff attached as Exhibit 4 a proposed
First Amended Complaint.
(2) state
what allegations in the previous pleading are proposed to be deleted, if any,
and where, by page, paragraph and line number, the deleted allegations are
located; and
Here, this requirement
does not seem applicable because Plaintiff is seeking to add allegations, not
delete allegations.
(3) state
what allegations are proposed to be added to the previous pleading, if any, and
where, by page, paragraph, and line number, the additional allegations are
located. (Cal. Rules of Court, rule 3.1324(a).)
Here, the motion does not
explicitly state what allegations are proposed to added, but Plaintiff does
state, “The allegations Plaintiff seeks to add are located at page 3, paragraph
10, lines 11–13; page 3, paragraph 11, lines 14–15; page 3, paragraph 12, lines
16–17; page 3, paragraph 17, lines 26–27; page 5, paragraph 25, lines 6–16; and
page 5, line 22 of the proposed First Amended Complaint. (Crawford Decl., Ex.
4.).” (Pl. Mot. p. 9.)
While the motion doesn’t
explicitly state what is proposed to be added, the motion makes it clear that leave
is being sought to amend for the sake of adding a claim for punitive damages.
Further, Exhibit 4 with the proposed amended pleading indicates in redline what
is proposed to be added.
CRC 3.1324(b)
Further, under CRC 3.1324(b), a separate declaration
must accompany the motion and must specify:
(1) the
effect of the amendment;
Plaintiff attached the declaration of attorney Curtis
J. Crawford. In relevant part, Crawford stated, “The effect of the amendment is
to plead a claim for punitive damages based on Defendant’s willful decision to
drive his vehicle at an unsafe speed on Angeles Forest Highway at night while
knowing his brakes were not working properly and would cause his vehicle to
slide when he applied his brakes.” (Crawford Decl. ¶1.)
(2) why
the amendment is necessary and proper;
Crawford stated, “The amendment is necessary and
proper because Defendant’s willful decision to operate his vehicle despite
knowing it was operating improperly and dangerously supports a claim for
punitive damages. Defendant experienced his vehicle slide and lost control no
less than 5 times on the night of the collision, prior to colliding with
Plaintiff. Despite knowing this, he did not pull over but continued driving his
vehicle until he lost control, crossed the center divider and collided head-on
into Plaintiff.” (Crawford Decl. ¶2.)
(3) when
the facts giving rise to the amended allegations were discovered;
Crawford stated, “The facts giving rise to the amended
allegations were discovered on January 31, 2024 when Plaintiff deposed
Defendant.” (Crawford Decl. ¶3.)
(4) the
reason why the request for amendment was not made earlier must accompany the
motion. (Id., rule 3.1324(b).)
Crawford stated, “The
request for amendment was not made earlier because Plaintiff’s counsel just
learned on January 31, 2024 that Defendant knew that his vehicle would slide
dangerously and he would lose control of the vehicle when he would apply his
brakes on the night of the collision.” (Crawford Decl. ¶4.)
SUBSTATIVE
ANALYSIS
Overall, Plaintiff argues that he
should be able to plead a request for punitive damages based on Defendant’s
willful decision to drive his vehicle at an unsafe speed on Angeles Forest
Highway at night while knowing his brakes were not working properly and would
cause his vehicle to slide when he applied his brakes. Plaintiff argues that
there are several portions of the deposition of Defendant that could support a
finding that Defendant consciously disregarded the safety of others.
Defendant
argues that punitive damages could not be supported here under Civil Code § 3294.
Defendant also argues that it would be extremely prejudicial to Defendant.
Here, the
Court finds Plaintiff’s arguments availing.
In an action for the
breach of an obligation not arising from contract, where it is proven by clear
and convincing evidence that the defendant has been guilty of oppression,
fraud, or malice, the plaintiff, in addition to the actual damages, may recover
damages for the sake of example by way of punishing the defendant. (Cal. Civ.
Code § 3294(a).) “‘Malice’ means conduct
which is intended by the defendant to cause injury to the plaintiff or
despicable conduct which is carried on by the defendant with a willful and
conscious disregard of the rights or safety of others.” (CCP § 3294(c)(1).)
“‘Oppression’ means despicable conduct that subjects a person to cruel and
unjust hardship in conscious disregard of that person’s rights. (CCP § 3294(c)(2).)
“‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a
material fact known to the defendant with the intention on the part of the
defendant of thereby depriving a person of property or legal rights or otherwise
causing injury. (CCP § 3294(c)(3).)
As a preliminary matter, although
Defendant argues that the proposed allegations don’t support a claim for
punitive damages, the Court does not find that the merits of whether the
proposed amendment sufficiently alleges punitive damages appropriate for the
instant motion for leave to amend.
The Court finds that the merits of
whether punitive damages are sufficiently alleged would be more properly
addressed in a different type of motion. (See Kittredge Sports Co. v. Superior
Court (1989) 213 Cal.App.3d 1045, 1048 (“[T]he preferable practice
would be to permit the amendment and allow the parties to test its legal
sufficiency by demurrer, motion for judgment on the pleadings or other
appropriate proceedings.”).
“Leave to amend is in general required to be liberally
granted [citation omitted], provided there is no statute of limitations
concern. Leave to amend may be denied if there is prejudice to the opposing
party, such as delay in trial, loss of critical evidence, or added costs of
preparation. [citation omitted].” (Kolani v. Gluska (1998) 64
Cal.App.4th 402, 411.)
Further, while the Court is not
commenting on whether or not Plaintiff sufficiently alleged a basis for
punitive damages, it appears that based on Plaintiff’s argument, Plaintiff has
at least sufficiently argued why it should be granted leave to amend to make an
attempt to allege punitive damages.
Further, Defendant’s argument on the
prejudice that it would suffer is unavailing.
Plaintiff’s motion for leave to amend to
include a claim for punitive damages is GRANTED.