Judge Jill Feeney, Case 20STCV29474 2023-01-10 Tentative Ruling

This is an action for assault, battery, IIED, negligence, negligent hiring, and false imprisonment arising from an altercation that took place in April 2019. Plaintiff Kirk Robert Jr. filed his Complaint against Defendants Hollywood Park Casino Company, Inc. and Stockbridge Capital Group, LLC on August 4, 2020.

Plaintiff seeks to amend his Complaint to claim punitive damages. Plaintiff alleges that at a deposition on November 21, 2021, he discovered Defendant’s security guard filed a fraudulent incident report to the Bureau of Gambling Control. Based on these new facts, Plaintiff now seeks to add a prayer for punitive damages to the Complaint.

Defendant Hollywood Park Casino Company (“Casino”) opposes the motion, arguing that Plaintiff delayed bringing this motion for over a year and just three months before trial. Casino argues that the delay is an attempt to preclude Casino from conducting discovery, filing a motion to strike, or filing a motion for summary adjudication. Casino alleges that Plaintiff’s counsel’s unavailability is no excuse for the delay. Casino also argues Plaintiff failed to meet and confer before filing the instant motion and failed to comply with Cal. Rules of Court, Rule 3.1324(a)(3). Casino also argues that the amendment fails to show punitive damages are warranted in this case. Casino also points out that Plaintiff failed to serve Defendant Charles Asberry with notice of this motion.

Plaintiff argues that the once a prima facie case for punitive damages is presented, courts must permit the proposed amended pleading. Plaintiff also argues the amended Complaint does support a demand for punitive damages. Plaintiff alleges he did meet and confer before filing this motion and that he did comply with rule 3.1324(a)(3) by including the proposed paragraph, page, and lines to be amended in his motion.

Under California Rules of Court Rule, rule 3.1324, subdivision (a), a motion to amend a pleading shall (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.

Under California Rule of Court, rule 3.1324, subdivision (b), 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.

California Code of Civil Procedure section 473, subdivision (a)(1) provides, in relevant part: “[t]he 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.”

“This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047.) Ordinarily, the court will not consider the validity of the proposed amended pleading in ruling on a motion for leave since grounds for a demurrer or motion to strike are premature. The court, however, does have discretion to deny leave to amend where a proposed amendment fails to state a valid cause of action as a matter of law and the defect cannot be cured by further amendment. (See California Casualty General Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 281 [overruled on other grounds by Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390].)

Under California Rules of Court Rule 3.1324(a), a motion to amend a pleading shall (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.¿

Even if a good amendment is proposed in proper form, a long, unwarranted and unexcused delay in presenting it may be a good reason for denial. In most cases, the factors for timeliness are: (1) lack of diligence in discovering the facts or in offering the amendment after knowledge of them; and (2) the effect of the delay on the adverse party.¿If the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the judge has discretion to deny leave to amend.¿(Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.)¿Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, or added costs of preparation such as an increased burden of discovery.¿(Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488.)¿

Plaintiff properly filed the necessary proposed amended Complaint. Although the separate declaration does not contain the facts required by California Rules of Court, rule 3.1324(b), the requested facts are addressed in Plaintiff’s motion. The Court also notes that Plaintiff failed to serve Defendant Charles Asberry with notice of this motion. However, Asberry has not appeared in this action. To the extent that the parties dispute whether the proposed amendment would support a demand for punitive damages, the Court declines to consider the validity of the proposed amendment at this time since grounds for a demurrer or motion to strike are premature.

Plaintiff seeks to amend his Complaint to include facts supporting a prayer for punitive damages. Plaintiff’s counsel testifies that he did not discovery facts giving rise to the claim for punitive damages until new facts were discovered in discovery. (Perlstein Decl., ¶9.) Specifically, Plaintiff’s counsel learned that a Casino security guard filed a fraudulent incident report about Plaintiff with the Bureau of Gambling Control during a deposition that took place on November 21, 2021. (Id., ¶¶6-7.) Plaintiff’s counsel explains that he did not file the motion earlier because he learned the new facts in discovery and because he reserved the first date that worked with his schedule.

Plaintiff’s delay in filing this motion for 11 months after learning the facts giving rise to the proposed amendment and setting the hearing on this motion 14 months after discovering the facts giving rise to the proposed amendment are good reasons for denying this motion. Plaintiff discovered the fraudulent incident report in November 2021, yet filed this motion in October 2022 and set the hearing on this motion in January 2023, on the eve of trial. Plaintiff offers no explanation for this protracted delay other than the fact that the new facts were uncovered during discovery in November 2021, almost a full year before the motion was filed, and the assertion that Plaintiff Counsel’s schedule did not permit an earlier hearing date.

Casino argues that it would be prejudiced if Plaintiff’s motion is granted. Because the amendment would fall so close to trial, Casino would have no opportunity to conduct additional discovery, file a motion to strike, or file a motion for summary adjudication.

In light of the unexplained and unjustified delay and the prejudice Casino would face if Plaintiff amends the Complaint so close to trial, Plaintiff’s motion for leave to amend is denied.

Plaintiff argues that the Court must grant his motion for leave to amend because he presented a prima facie case for punitive damages, citing (Rowe v. Superior Court (1993) 15 Cal.App.4th 1711, 1735.) However, Rowe concerns the standard of evidence that must be exist to warrant an amendment seeking punitive damages under Code Civ. Proc., section 425.14, which specifically concerns actions against religious corporations. Here, Casino is not a religious corporation. Moreover, this motion turns on whether Plaintiff unreasonably delayed bringing this motion.

It is well-settled that courts have discretion to deny leave to amend if a party has not been diligent in bringing the motion for leave to amend, the delay prejudices the adverse party, or other reasons. (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.) Here, Plaintiff delayed the hearing on this motion for over one year. Casino would also be prejudiced if Plaintiff amends his Complaint on the eve of trial. Therefore, Plaintiff’s motion is denied.