Judge: Holly J. Fujie, Case: 21STCV35098, Date: 2023-08-09 Tentative Ruling

Case Number: 21STCV35098    Hearing Date: August 9, 2023    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

AND RELATED CROSS-ACTION

            This order concerns: (1) a motion for leave to file a second amended complaint (the “SAC Motion”) filed by Plaintiff/Cross-Defendant Matthew Mark (“Mark”); and (2) a motion for trial preference (the “Trial Motion”) filed by Defendant/Cross-Complainant Betty Sue Weitkamp (“Weitkamp”).

MOVING PARTIES: (1) Mark; (2) Weitkamp

RESPONDING PARTIES: (1) Weitkamp; (2) Mark

BACKGROUND

            This action arises out of a dispute over the use of neighboring properties located in Malibu.  Mark’s currently operative first amended complaint (the “FAC”), filed on November 17, 2021, alleges: (1) quiet title (prescriptive easement); (2) declaratory and injunctive relief (prescriptive easement); (3) declaratory and injunctive relief (equitable easement); (4) declaratory and injunctive relief (irrevocable license); (5) declaratory and injunctive relief (irrevocable license); (6) quiet title; and (7) ejectment.  On April 8, 2022, Weitkamp filed a cross-complaint (the “XC”) alleging: (1) quiet title (as to the walkway); (2) declaratory relief; (3) quiet title (as to the deck); and (4) trespass.[1]

            On July 14, 2023, Mark filed the SAC Motion, which requests leave for Mark to file a proposed second amended complaint (the “SAC”) that includes four new causes of action and names two additional Plaintiffs as parties.  (See Declaration of Stephanie C. Goldstein (“Goldstein Decl.”) ¶ 11, Exhibit B.)

            On July 19, 2023, Weitkamp filed the Trial Motion, which argues that Weitkamp is entitled to a trial preference under California Code of Civil Procedure (“CCP”) section 36, subdivision (a) based on her age and health.  

MOTION FOR LEAVE TO AMEND

CCP section 473 permits the trial court in its discretion to allow amendments to pleadings in the furtherance of justice.  (See CCP § 473, subd. (a).)  CCP section 576 provides that any 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.  (CCP § 576.)  There is a policy of great liberality in permitting amendments to the pleadings at any stage of the proceeding.  (Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945.)  An application to amend a pleading is addressed to the trial judge’s sound discretion.  (Id.)  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 of Cal. In and For Los Angeles County (1959) 172 Cal.App.2d 527, 530.)  Where no prejudice is shown to the adverse party, the liberal rule of allowance prevails.  (Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564.)

 The court may, however, deny a motion for leave to amend where a plaintiff has been dilatory in seeking leave to amend and such delay has prejudiced defendant.  (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.)  Prejudice exists where amendment would: (1) cause a delay of trial; (2) increase preparation costs; (3) change the focus of the complaint; or (4) increase discovery burdens.  (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-88.)  Further, the court may consider unwarranted delay in seeking leave to amend, and abuse of discretion is less likely to be found in situations where the proposed amendment is offered after a long unexplained delay or where there is a lack of diligence.  (Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1280.) 

Under California Rules of Court (“CRC”) rule 3.1324, a motion for leave to amend a pleading must be accompanied by a declaration that sets forth: (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 sooner.  (CRC, r. 3.1324(b).)

The proposed SAC adds two new Plaintiffs: Mark in his individual capacity and a business entity associated with Mark named United States Real Estate Corporation.  (Goldstein Decl. ¶ 7.)  The SAC also adds causes of action for nuisance; trespass; intentional interference with prospective economic advantage; and eminent domain.  (Id.)  Mark contends that he first discovered that the FAC inadvertently omitted the additional Plaintiffs during a deposition on or about June 29, 2023, when Weitkamp’s counsel raised the issue that Mark could not recover money damages because he was not directly receiving income from the properties at issue in the FAC in his capacity as trustee.  (Goldstein Decl. ¶¶ 5, 9.)  With respect to the new causes of action alleged in the SAC and their request for monetary damages, Mark learned facts concerning the scope of his damages at some point after June 9, 2022, when he regained access to the property after the Court granted his motion for preliminary injunction on March 25, 2022.  (See Goldstein Decl. ¶ 9, Exhibit B ¶ 20.)

The Court finds that the SAC Motion does not set forth a satisfactory explanation for the delay in seeking leave to add new parties and allege new theories of recovery.  Notably, the FAC does not seek monetary damages, even though it alleges that Weitkamp’s alleged property interference caused Mark to lose business opportunities and income.  (See FAC ¶ 17.)  The allegations in the FAC thus indicate Mark’s awareness of his monetary damages at the time of its filing, and the SAC Motion’s vague evidence that Mark learned more about the scope of his damages “after some time passed” after June 2022 does not sufficiently account for the failure to seek leave to amend until the eve of trial or show that Mark acted diligently in seeking to file the SAC.  Further, the addition of new parties and theories of recovery would require Weitkamp to engage in additional discovery when the discovery cut-off has passed.  Absent a reasonable explanation for the delay and the trial delay caused by additional discovery burdens imposed by the proposed amendments, the Court finds that Mark has not demonstrated that seeking leave to amend at this stage in the litigation is appropriate.  (See Duchrow v. Forrest (2013) 215 Cal.App.4th 1359, 1379-80.)  The Court therefore DENIES the SAC Motion.

MOTION FOR TRIAL PREFERENCE

A trial preference may be granted based on the health of a party.  (Heda v. Superior Court (1990) 225 Cal.App.3d 525.)  CCP section 36, subdivision (a) functions to safeguard litigants beyond a specified age against the legislatively acknowledged risk that death or incapacity might deprive them of the opportunity to have their case effectively tried and the opportunity to recover their just measure of damages or appropriate redress.  (Kline v. Superior Court (1991) 227 Cal.App.3d 512, 515.)  The provision was enacted for the purpose of assuring that an aged or terminally ill plaintiff would be able to participate in the trial or his or her case and be able to realize redress upon the claim asserted.  (Looney v. Superior Court (1993) 16 Cal.App.4th 521, 532.)  The provision safeguards a legislatively acknowledged substantive right of older litigants to trial and to obtain a full measure of damages during the litigant’s lifetime.  (Vinokur v. Superior Court (1988) 198 Cal.App.3d 500, 502.) 

            Under CCP section 36, subdivisions (a)(1) and (a)(2), a party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant upon making both of the following findings: (1) the party has a substantial interest in the action as a whole; and (2) the health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.  Where a motion for trial preference is made pursuant to CCP section 36, subdivision (a), the attorney for the party seeking preference may submit an affidavit in support of the motion based on information and belief as to the medical diagnosis and prognosis of any party.  (CCP § 36.5.)

            In support of the Trial Motion, Weitkamp presents evidence that Weitkamp is 91 years old and has numerous health issues.  (See Declaration of Betty Sue Weitkamp (“Weitkamp Decl.”) ¶ 3.)  Since May 2021, Weitkamp has fallen five times, some of which required hospitalization.  (See id.)  After experiencing total hearing loss in March 2022 and having a negative allergic reaction to the treatment, Weitkamp has regained partial hearing in her left ear while remaining deaf in her right ear.  (Id.) 

            Weitkamp’s reply papers indicate that she filed the Trial Motion in response to the anticipated delays in defending the case in the event that Mark was permitted to file the SAC.  (See Trial Motion Reply 4:21-22.)  While the Trial Motion presents evidence of Weitkamp’s health issues, it does not provide evidence regarding her prognosis, or the progression or worsening of her conditions.  In light of the lack of specificity regarding the need to commence the trial within 120 days and the denial of the SAC Motion, the Court DENIES the Trial Motion.  The trial will proceed on August 14, 2023, as scheduled.

Moving parties are ordered to give notice of this ruling. 

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar. 

  Dated this 9th day of August 2023