Judge: Gregory Keosian, Case: 19STCV44154, Date: 2022-08-18 Tentative Ruling

Case Number: 19STCV44154    Hearing Date: August 18, 2022    Dept: 61

Plaintiff Jens Frederick Larsen’s Motion for Leave to File Third Amended Complaint is DENIED.

I.                MOTION FOR LEAVE TO FILE AMENDED COMPLAINT

Code Civ. Proc. section 473 subd. (a)(1) states that:

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.

“The trial court has discretion to permit or deny the amendment of the complaint, but instances justifying the court's denial of leave to amend are rare.” (Armenta ex rel. City of Burbank v. Mueller Co. (2006) 142 Cal.App.4th 636, 642.)

“Although 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 [Citations], this policy should be applied only ‘[w]here no prejudice is shown to the adverse party . . .’ [Citation.] A different result is indicated ‘[w]here inexcusable delay and probable prejudice to the opposing party’ is shown. [Citation.]” (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487.)

Pursuant to California Rule 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.”

Such a motion must include a supporting declaration 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 reasons why the request for amendment was not made earlier.” (CRC Rule 3.1324, subd. (b).)

Plaintiff seeks leave to amend to add a third cause of action for fraud, to add detail to his first two causes of action, and to add as defendants to this third cause of action Defendant’s CEO Sonny Sandel, Director of Nursing Annabelle Vita, Director of Operations and Finance Robert Sunga, CEO John Favis, and Senior Partner Marissa Tiongson. (Larsen Decl. ¶ 7, Exh. A.) The basis for Plaintiff’s new fraud claim is the contention that Defendant falsified medical records in order to make it appear as though Plaintiff received treatment he did not actually receive. (Larsen Decl. Exh. A, ¶¶ 44–78.)

Plaintiff’s motion is defective, as Plaintiff fails to plead a fraud cause of action.[1] The elements of fraud are “(1) a representation, (2) that is false, (3) made with knowledge of its falsity, and (4) with an intent to deceive, coupled with (5) actual detrimental reliance and (6) resulting damage.” (Lim v. The.TV Corp. Internat. (2002) 99 Cal.App.4th 684, 694.) Plaintiff’s claim here fails because although he alleges that Defendant has falsified medical records to support its defense in this action and to bill Medi-Cal, he does not claim to have relied at any point upon these false medical records, but rather claims to have known of their falsity as soon as they were discovered earlier this year, to have secured denials of their veracity from relevant therapists and physicians, and to have lodged a complaint with law enforcement officials. (Larsen Decl. ¶¶ 74–78.) The proposed complaint alleges fraud, but Plaintiff was not defrauded.

The proposed complaint cites Penal Code sections 134 and 470. The former criminalize the “preparing any false or ante-dated book, paper, . . . or other matter or thing, with intent to produce it . . . for any fraudulent or deceitful purpose . . . upon any trial, proceeding, or inquiry whatever.” (Penal Code § 134.) The latter states, “Every person who, with the intent to defraud, knowing that he or she has no authority to do so, signs the name of another person or of a fictitious person to any of the items listed in subdivision (d) is guilty of forgery.” (Penal Code § 470, subd. (a).) But neither of these statutes purports to create a private right of action for their enforcement, and there is compelling case authority against allowing civil tort remedies for the destruction or falsification of evidence. (See Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 4 [holding no tort remedy for spoliation of evidence].)

Accordingly, leave to add the third cause of action and the additional defendnats is DENIED. Moreover, Plaintiff admits in reply that the additional facts to be added to the first and second causes of action were to address Defendant’s demurrer, and since that demurrer to those causes of action has been overruled, there is little reason for the proposed amendments. (Reply at pp. 3–4.) The motion is therefore DENIED in its entirety.