Judge: Elaine Lu, Case: 20STCV37152, Date: 2022-10-11 Tentative Ruling

Case Number: 20STCV37152    Hearing Date: October 11, 2022    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Procedural Background

On September 28, 2020, Plaintiff Monrell D. Murphy (“Plaintiff”) filed the instant legal malpractice action against Defendants McMurray Henriks, LLP (“Firm”) and Yana Henriks (“Henriks”) (jointly “Defendants”).  On April 26, 2021, Defendants filed a demurrer and motion to strike.  On September 15, 2021, the Court sustained Defendants’ demurrer to and motion to strike the complaint with leave to amend.  (Order 9/15/21.) 

On September 29, 2021, Plaintiff filed a First Amended Complaint against Defendants.  On November 2, 2021, Defendants filed a demurrer and motion to strike the First Amended Complaint.  On March 1, 2022, the Court sustained the demurrer to the First Amended Complaint and granted the motion to strike with leave to amend.  (Order 3/1/22.)

On March 18, 2022, Plaintiff filed the operative Second Amended Complaint (“SAC”) against Defendants.  The SAC asserts a single cause of action for legal malpractice. 

On August 3, 2022, Plaintiff filed the instant motion for leave to file a third amended complaint.  On September 20, 2022, the Court advanced the hearing to October 11, 2022.  (Minute Order 9/20/22.)  On September 26, 2022, Defendants filed an opposition.  No reply has been filed.

Allegations of the Operative Complaint

The SAC alleges as follows:

            On October 3, 2016, Plaintiff retained Defendant Firm with Defendant Henriks to represent Plaintiff for an action involving the wrongful death of his father in the Los Angeles Superior Court, case number MC026443.  (SAC ¶¶ 5-6.) 

            “On or about June 11, 2019 Defendant [Henriks] who was the attorney of records on the underlying case filed a motion to withdraw, citing a brake [sic] down in client relations with Mrs. Polee. The motion was subsequently granted and Defendant [Henriks] withdrew her and her firm's representation.”  (SAC¶ 7.)

            On July 15, 2019 Plaintiff drafted and mailed a letter to Defendants requesting the case work product as Plaintiff had been forced to proceed in pro per since the withdrawal.  (SAC ¶ 9.) Defendants did not respond.  (SAC ¶ 9.)

            “On or about August 9, 2019 the Plaintiff placed a telephone call to the Defendants office and spoke with Sara Justice, a person who identified herself as the Defendant’s paralegal, in which the Plaintiff was told that Defendant [Henriks] was unavailable. The Plaintiff left a message informing Defendants that said case had an up and coming hearing for summary judgement in which the Plaintiff would not be able to effectively defenda [sic] against without [said] litigation file. Plaintiff was insured that the message would be forwarded. The Defendants never responded.”  (SAC ¶ 10.)

            “On or about December 17, 2019 summary judgement [sic] was entered against the Plaintiff in said case as to defendants Krishana and Shankar because the Plaintiff was unable to present expert testimony in the form of affidavits, as required by law to demonstrate a genuine dispute of facts in said case.”  (SAC ¶ 11.) 

“On or about Feburary 2, 2021 [sic] after the Plaintiff made several formal complaints with the State Bar of California, the Defendant finally released said litigation file. In the litigation file the Plaintiff discovered several executed affidavits of various expert witnesses. The Plaintiff was able to use thoes [sic] affidavits to defeat the summary judgement motions of the remaining defendants in said underlying case.”  (SAC ¶ 12.)  “Had Defendants uphealed [sic] their duty to promptly release said litigation file, the Plaintiff would have not only defeated defendants Krishana and Shankar motion for summary judgement in the underlying case, but would have ultimatly [sic] prevailed at trial with a verdict against defendants Krishana and Shankar in the underlying wrongful death action.”  (SAC ¶ 13.)

“Defendant [Henriks] intentionally withheled [sic] the Plaintiff's litigation file for the purpose of causing harm, and did so in retaliation for Plaintiff's co-plaintiff on the underlying case, Candace Polee threats to sue and report the Defendant to the bar association for malpractice.”  (SAC ¶ 14.)

On June 2, 2022, the court in the underlying case “issued an Order dismissing Plaintiff's wrongful death cause of action for lack of jurisdiction due to Defendants failure to meet the statue [sic] of limitation.”  (SAC ¶ 15.)  “The wrongful death of the Plaintiff's father occured [sic] on April 20, 2015. The Defendants agreed to represent the Plaintiff in the underlying case on or about October 3, 2016. However, the Defendants did not file the Fourth Amended Complaint in the underlying action, which joined the Plaintiff to said action, untill [sic] October 2, 2018, which was untimely pursuant to Code 6f Civil Procedure Sections 349.5, 364, and 335.1.”  (SAC ¶ 16, Exh. A.)  “Had the Defendants timely filed Plaintiff's claim for wrongful death in the underlying case, Plaintiff would have ultimately prevailed at trial with a favorable verdict in the underlying case.”  (SAC ¶ 17.)

Request for Judicial Notice

            In opposition, Defendants request that the Court take judicial notice of the following record:

1.     The court’s June 2, 2022 order in Candace Polee, et al. vs. Jehangir Yeganeh, et al., Los Angeles Superior Court case number MC026443

As the court may take judicial notice of court records and government records, (See Evid. Code, § 452(c), (d)), the unopposed request for judicial notice is granted. However, the Court will not take judicial notice of the truth of assertions within. (See Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.)

Legal Standard

Code of Civil Procedure § 473, subdivision (a)(1) states: “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 of Civil Procedure § 576 states that: “[a]ny judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.”

Judicial policy favors resolution of all disputed matters between the parties, and therefore, 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.”].)

Pursuant to California Rules of Court, rule 3.1324(a), a motion to amend must: (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered; and (2) state what allegations are proposed to be deleted from or added to the previous pleading and where such allegations are located.  Rule 3.1324(b) requires a separate declaration that accompanies the motion, stating: “(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.” 

Discussion

Proposed Amendments

            Here, Plaintiff seeks to amend the complaint to add factual allegations that have occurred after the instant action was filed indicating a further basis for malpractice.  (Motion at p.1:21-24.)  Specifically, the additional proposed allegations state that:

15. On or about June 2, 2022, in the underlying case, the Superior Court of California, County of Los Angeles, issued an Order dismissing Plaintiff's wrongful death cause of action for lack of jurisdiction due to Defendants [sic] failure to meet the statue [sic] of limitation.

16. The wrongful death of the Plaintiff's father occured [sic] on April 20, 2015. The Defendants agreed to represent the Plaintiff in the underlying case on or about October 3, 2016. However, the Defendants did not file the Fourth Amended Complaint in the underlying action, which joined the Plaintiff to said action, untill [sic] October 2, 2018, which was untimely pursuant to Code 6f Civil Procedure Sections 349.5, 364, and 335.1. See Exhibit (A).

17. Had the Defendants timely filed Plaintiff's claim for wrongful death in the underlying case, Plaintiff would have ultimately prevailed at trial with a favorable verdict in the underlying case.

…

19. Defendants McMurray Henriks, LLP, and Yana Henriks had the duty as the Plaintiff's attorney in the underlying action to timely prosecute all claims. Defendants legal malpractice in failing to timely file Plaintiff's wrongful death claim in the underlying action resulted in the Plaintiff's meritorious claim being dismissed for not being brought within the relevant statues [sic] of limitation. Had Defendants timely filed Plaintiff's wrongful death claim, the Plaintiff would have ultimately obtained a more favorable settlement and/or verdict and judgement in the underlying case.

(Murphy Decl., Proposed Third Amended Complaint ¶¶ 15-17, 19.)

            The proposed third amended complaint also includes the June 2, 2022 minute order dismissing the wrongful death cause of action.  (Murphy Decl., Proposed Third Amended Complaint at Exh. A; see also RJN Exh. 1.)  Plaintiff’s declaration in support notes that on June 2, 2022 the court in the underlying case dismissed the wrongful death cause of action due to the statute of limitations.  (Murphy Decl. ¶¶ 2-3.)  Accordingly, Plaintiff seeks to amend the complaint to state that Defendants were negligent in failing to file the wrongful death action within the relevant statute of limitations.  (Murphy Decl. ¶ 3.)  Included with the motion is a proposed third amended complaint with these additions.  (Murphy Decl., Proposed Third Amended Complaint.)

Opposition

            In opposition, Defendants contend that leave should be denied because (1) the proposed amendment is futile and deficient on its face, (2) Plaintiff unreasonably delayed in bringing the instant motion, and (3) the proposed third amendment adds a new theory of recovery.

            Defendants contend that “it appears on the face of the proposed Third Amended Complaint that amendment should be denied as futile and deficient as a matter of law because Plaintiff Monrell Murphy’s failure to bring the action to trial within five-years pursuant to CCP § 583.310 et seq. is a sufficient superseding cause for the trial court’s dismissal of the underlying action.”  (Opp. at p.2:20-23.)  However, this misstates the ruling in the underlying actions.  In the underlying action, the court’s June 2, 2022 order granted a judgment on the pleadings as to the wrongful death cause of action on statute of limitations grounds and dismissed the rest of the action for failure to bring to trial within five-years pursuant to CCP § 583.310 et seq.  (RJN Exh. 1.)  However, the court in the underlying action specifically noted that the wrongful death cause of action was still within the five-year deadline to prosecute.   (RJN Exh. 1 at p.6.)  At most, Defendants merely speculate that had the wrongful death action been timely filed that Plaintiff’s underlying wrongful death action would have failed because Plaintiff would not have been able to bring the action to trial within the five-year deadline.  Defendants provide no legal basis for this legally tenuous argument.  Rather, at most, Plaintiff’s failure to bring some of the causes of action in the underlying action to trial within five-years under CCP § 583.310 et seq. merely indicates that Plaintiff may be unable to show causation – i.e., that Defendants alleged malpractice caused Plaintiff to lose or be unable to obtain a settlement for the underlying action.

Regardless, while there may be deficiencies in the proposed third amended complaint, there is no requirement that a critical inquiry be made into the merits of the amendment on a request for leave to amend.  (See Ruiz v. Santa Barbara Gas & Elec. Co. (1912) 164 Cal. 188, 196 [ “The usual and orderly way to test the sufficiency of an amended complaint is, in the first instance, by demurrer, after the same has been filed, when the questions presented in regard thereto may be considered and determined, and leave given to the pleader to amend if the pleading be held insufficient and the court deem it proper that the party should have such leave.”].)  Rather, the proper challenge to deficiencies to a pleading is through a demurrer or motion to strike.  Similarly, evidentiary deficiencies should be addressed in a motion for summary judgment and/or summary adjudication.

As to delay, the factual allegations that Plaintiff wishes to add about the underlying action did not occur until June 2, 2022.  (RJN Exh. 1.)  The instant motion was filed 62 days later.  Defendants provide no basis as to why Plaintiff should have known that the underlying wrongful death action was not timely filed before the court in the underlying action granted a judgment on the pleadings on the action.  Thus, there is little to no indication of any delay in bringing the instant motion.  Further, “trial courts are to liberally permit such amendments, at any stage of the proceeding[.]”  (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 488–489.)  Rather, to justify a denial of a motion for leave to amend, the delay must have caused prejudice to the adverse parties.  (See Fair v. Bakhtiari (2011) 195 Cal.App.4th 1135, 1147, [“[W]here there is no prejudice to the adverse party, it may be an abuse of discretion to deny leave to amend.”].)

  Accordingly, the Court turns to Defendants’ claims of prejudice.

Prejudice

In opposition, Defendants claim that there is prejudice because the new theory would require “Defendant to conduct further discovery, mount additional defenses, and conduct extensive research to oppose this claim.”  (Opp. at p.6:7-9.)  Additional discovery costs may support a claim for prejudice. (Miles v. City of Los Angeles (2020) 56 Cal.App.5th 728, 739 [“Prejudice exists where the proposed amendment would require delaying the trial, resulting in added costs of preparation and increased discovery burdens.”].)  However, Defendants have failed to provide any indication as to the quantum of additional discovery or what additional discovery would even be necessary to address the new theory – if any.

Defendants’ reliance on Rainer v. Buena Community Memorial Hosp. (1971) 18 Cal.App.3d 240, is misplaced.  In Rainer there was obvious prejudice as the Plaintiff moved to amend on the third day of trial.  In contrast, while the action has been pending for two years, no trial has been set. 

In sum, Defendants fail to identify any prejudice, and it would be an abuse of discretion to deny the instant motion for leave to file an amended complaint in the absence of prejudice.  Accordingly, the motion for leave to amend is GRANTED.

CONCLUSION AND ORDER

Based on the foregoing, Plaintiff Monrell D. Murphy’s motion for leave to file a third amended complaint is GRANTED.

Plaintiff is to file the proposed third amended complaint within thirty (30) days of notice of this order.

Defendants are to give notice to all parties and to California Correctional Institution Litigation Coordinator Nicholas Hernandez and file proof of service of such.

DATED: October 11, 2022                                                    ___________________________

                                                                                    Elaine Lu

                                                                                    Judge of the Superior Court