Judge: Kevin C. Brazile, Case: 19STCV23467, Date: 2022-11-08 Tentative Ruling

Hearing Date: November 8, 2022

Case Name: Kaplan v. Gimelstob

Case No.: 19STCV19647

Matter: Motion for Leave to File Fourth Amended Cross-Complaint

Moving Party: Justin Gimelstob

Responding Party: Randall Kaplan and Madison Kaplan

Notice: OK

Ruling: The Motion is granted.

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

Justin Gimelstob seeks leave to file a fourth amended cross-complaint “(i) to replace the fourth cause of action for abuse of process with a cause of action for tort in essence (which is based upon the same underlying allegations); (ii) to clarify the nature of the wrongful conduct supporting his fifth cause of action for intentional interference with contractual relations and his sixth cause of action for intentional interference with prospective economic advantage (consisting of the unprivileged publication of false and defamatory statements to a media spokesperson and other private individuals); and (iii) to include new causes of action for defamation per se and defamation per quod (based upon recently discovered facts that Kaplan and Madison made knowingly false statements about Madison’s purported pregnancy and miscarriage).”

The Court may, in the furtherance of justice, and upon any terms as may be proper, allow a party to amend any pleading.  (Code Civ. Proc. §§ 473, 576.)  In general, California courts liberally exercise discretion to permit amendment of pleadings in light of a strong policy favoring resolution of all disputes between parties in the same action.  (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.)  “[T]here is a strong policy in favor of liberal allowance of amendments.”  (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 296.)  Pursuant to this policy, requests for leave to amend generally will be granted unless the party seeking to amend has been dilatory in bringing the proposed amendment before the Court, and the delay in seeking leave to amend will cause prejudice to the opposing party if leave to amend is granted.  (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490; Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565.)  The decision on a motion for leave is directed to the sound discretion of the trial court.  (See generally Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2014) ¶¶ 6:637 et seq.)

Randall and Madison Kaplan argue the declaration filed with the Motion does not comply with California Rules of Court, Rule 3.1324(b) because it does not state “when the facts giving rise to the amendment were discovered.”

The Court believes the declaration is sufficient because it indicates that the new allegations arise from depositions taking place in June 2022.

The Kaplans next argue, “California Rules of Court, rule 3.1324(a)(1) states, in part, that a motion to a amend a pleading must include a copy of the ‘amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments.’ Gimelstob filed a proposed FAXC with their motion for leave to amend on July 21, 2022. Gimelstob then filed another proposed pleading titled “Justin Gimelstob’s Fourth Amended Cross-Complaint Against Randall Kaplan and Madison Kaplan with the instant Motion. However, the Revised FAXC is more appropriately styled as the ‘Proposed Fifth Amended Cross-Complaint’.”

This lacks merit.  The prior motion was withdrawn, so there was never a preexisting fourth amended cross-complaint.

As there is no apparent prejudice from the proposed amendment, the Motion is granted. 

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.