Judge: Frank M. Tavelman, Case: 20STCV33920, Date: 2022-08-19 Tentative Ruling

Case Number: 20STCV33920    Hearing Date: August 19, 2022    Dept: A

ALLEGATIONS:

Frank K. Osby ("Decedent" and/or “Plaintiff”) filed a Complaint against KSM Healthcare, Inc. d.b.a. Dreier's Nursing Care Center ("Defendant") on September 3, 2020, and a First Amended Complaint ("FAC") on October 7, 2021, alleging a single cause of action for Elder Abuse under the Elder Abuse and Dependent Adult Civil Protection Act and seeks both punitive and treble damages.

Willia Osby has been appointed as the successor-in-interest to Decedent.

HISTORY:

On July 18, 2022, the Court received the Motion for Leave to File SAC filed by Plaintiff; an opposition filed by Defendant on August 5, 2022; and a second opposition filed by Defendant on August 8, 2022. The Court will consider only the timely-filed August 5 opposition.

RELIEF REQUESTED:

Plaintiff moves for leave to file a SAC.

ANALYSIS:

I.          LEGAL STANDARD

CCP § 473(a) permits the Court to grant leave to a party to amend a pleading. The Court’s discretion regarding granting leave to amend is usually exercised liberally to permit amendment of pleadings. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) “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.” (Morgan v. Superior Court (1959) 172 Cal. App. 2d 527, 530.) Courts may grant a motion to amend as late as the time of trial and even postpone the trial if necessary to the furtherance of justice. (Honig v. Financial Corp. of America (1992) 6 Cal. App. 4th 960, 965.) But despite the general policy of liberality in allowing amendments, it is proper and within the discretion of the trial court to deny leave to file a proposed amendment unless the proponent of the amendment can show the amendment will not be prejudicial to other parties in the action and the delay in bringing the amendment was excusable. (Melican v. Regents of University of California (2007) 151 Cal. App. 4th 168, 175.)

II.        MERITS

Plaintiff/Moving Party asserts that the amendment should be permitted because: (1) Plaintiff’s amendments arise out of the same events and the same injury to Plaintiff and do not materially change any of the allegations of the currently operative complaint; (2) Plaintiff’s amendments are in furtherance of justice and judicial expediency since they allow Plaintiffs to set forth more fully and accurately all claims and damages against the Defendants in this action; and (3) California courts have consistently held that such amendments should be liberally permitted.

Defendant/Responding Party opposes the amendment for the following reasons: (1) counsel for Plaintiff failed to comply with California Rules of Court, Rule 3.1324 by failing to include in counsel’s declaration: (a) why the amendment is necessary and proper, (b) when the facts giving rise to the amended allegations were discovered, or the reason why the request for amendment was not made earlier; (2) the motion is untimely; and (3) the proposed SAC fails to state a cause of action for dependent adult abuse against Defendant.

A.    CRC Rule 3.1324

CRC Rule 3.1324 provides:

(a) Contents of motion

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.

(b) Supporting declaration

A separate 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 reasons why the request for amendment was not made earlier.

(Cal. Rules of Court, Rule 3.1324, subds. (a) & (b).)

On review of the Declaration of Justin Cade, Esq., the Court is satisfied that the CRC requirements are met based on reasonable inferences drawn from the Defendant being improperly pro per. (Decl. Cade, ¶ 2.)

B.     Failure to State a Cause of Action

Based on the Cade Declaration and the proposed SAC, the proposed amendments do not state a new cause of action, but primarily correct factual, formatting and typographical matters from the FAC. As such, the Court declines to deny the amendment on this basis.  Had the proposed SAC raised new causes of action, the Court would have considered the validity of those claims; but the Court declines to effectively sustain a demurrer to the proposed amended pleading via opposition to the amendment motion.

C.     Punitive Damage Claims

Defendant cites to Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 192 and seeks denial of the punitive damage amendment under CCP §425.13.  This statute provides that, prior to seeking punitive damages for the professional negligence of a health care provider, Plaintiff must seek leave of the Court and establish through affidavits the substantial probability that Plaintiff will prevail. (CCP § 425.13(a).)  Plaintiff counters that this section is inapplicable to an elder abuse claim, but Defendant avers that no such claim is properly pled.

The Court notes that the proposed amendment does not add a punitive damage claim but simply seeks amendment of an existing claim. While the Court acknowledges Defendant’s argument that no elder abuse allegation is properly pled, at this stage, such an amendment is not improper when it simply corrects the existing dependent abuse claim. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal. 4^th 771.)

III.       CONCLUSION

The Court thus grants the instant motion.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Plaintiff Frank K. Osby's Motion to File SAC came on regularly for hearing on August 19, 2022, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION TO FILE A SECOND AMENDED COMPLAINT IS GRANTED.

IT IS SO ORDERED.

DATE:  August 19, 2022                               _______________________________

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

County of Los Angeles