Judge: Kristin S. Escalante , Case: 21STCV44580, Date: 2023-03-29 Tentative Ruling
Case Number: 21STCV44580 Hearing Date: March 29, 2023 Dept: 24
MOVING PARTY: Diana Barnett (Plaintiff)
RESP. PARTY: Kia Motors America, Inc.
(Defendant)
NATURE OF PROCEEDINGS: Hearing on Motion for Leave
to Amend - file Second Amended Complaint
The
above-captioned matters are called for hearing.
The Court has
read the moving papers in the above-captioned motions and announces its tentative
rulings in open Court.
The Motion for Leave to file Second Amended Complaint;
reservation no.: 982314805933 filed by Plaintiff Diana Barnett on 03/03/2023 is
GRANTED.
Plaintiff is ordered to file the second amended complaint
within 5 days’ notice of this order.
Plaintiff Diana Barnet (“Plaintiff”) moves for an order
granting her leave to file a second amended complaint against Defendant Kia
Motors America, Inc. (“Defendant”) alleging a sixth cause of action for
fraudulent concealment and adding a request for punitive damages. (Notice of
Mtn., at p. 1.)
By way of background, on December 7, 2021, Plaintiff filed the
present action for claims under the Song-Beverly Consumer Warranty Act (“Song
Beverly”), breach of warranty, and fraudulent concealment against Defendant in
connection with Plaintiff’s November 2017 obtainment of a 2017 Kia Forte
(“subject vehicle”). (Compl., ¶10.) Plaintiff filed the first amended complaint
(“FAC”) later that month omitting the fraud claim.
Defendant’s 03/16/2023 request for judicial notice is GRANTED.
(Evid. Code, § 452.)
The issue is whether Plaintiff’s request for leave to
amended should be denied as untimely or because of prejudice to Defendant.
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.) California courts
liberally exercise discretion to permit amendment of pleadings due to a strong
policy favoring resolution of all disputes between parties in the same action.
(Nestle
v. Santa Monica
(1972) 6 Cal.3d 920, 939;
see also Mesler
v. Bragg Management Co. (1985)
39 Cal.3d 290, 296 [There
is “a strong policy in favor of liberal allowance of amendments.”].) Thus, the court generally grants requests for
leave to amend 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. (Hirsa
v. Superior Court (1981)
118 Cal.App.3d 486, 490.)
The trial court has the discretion to determine whether to grant leave to amend
and “it is a rare case in which a court will be justified in refusing a party
leave to amend [their] pleadings. . .” (Morgan v. Superior Court of
Cal., In and For Los Angeles County (1959) 172 Cal.App.2d 527, 530.)
Defendant argues the motion for leave should be denied as
futile because the underlying documents cited by Plaintiff in the proposed
complaint are irrelevant to Plaintiff’s claim for fraud. “[L]eave to amend
should not be granted where, in all probability amended would be futile.”
(Foroudi v. Aerospace Corp. (2020 57 Cal. App. 5th 992, 1000 [finding amend
futile where plaintiff failed to exhaust administrative remedies for state law
claims]; see also Foxborough v. Van Atta (1994) 26 Cal. App. 4th 217, 231
[finding amend futile where the claim was clearly barred by the statute of
limitations].) Plaintiff relies on documents from the National Highway Traffic
Safety Administration (“NHTSA”) regarding an investigation into specific Kia
vehicles models as well as “all other Kia vehicles equipped with Theta II,
Lamdba II, Gamma and Nu engines.” (RJN, Ex 1 at p. 1.) The proposed SAC alleges
the subject vehicle was equipped with the Nu engine. (Declaration of David Lunn
[“Lunn Decl”], ¶4, Ex. 2 at p. 3) Thus, the underlying information from the
NHTSA could apply to Plaintiff’s claim. Plaintiff cites documents dated after
the sale of the subject vehicle but those may still assist establishing the
elements of Plaintiff’s fraud claim. Defendant’s argument does not demonstrate
futility akin to failure exhaust administrative remedies or the statute of
limitations. Moreover, the sufficiency of the claim can be challenged by
demurrer or other appropriate motion.
Next Defendant argues the motion is untimely. The court
may deny a motion for leave to amend where there is “inexcusable delay and
probable prejudice to the opposing party.” (Magpali
v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487 (Magpali) [permitting
denial where plaintiff sought to add a new claim on the eve of trial which
would subject defendant to prejudice in trial preparation].) Inexcusable
delay is sufficient grounds to deny a motion for leave to amend, particularly
where the amendment interjects a new issue which may require further
investigation or discovery. (see Green v. Rancho Stana Margarita Mortgage Co.
(1994) 28 Cal.App.4th 686, 692; see also Rainer v. Community Memorial Hosp. (1971)
18 Cal.App.3d 240, 258 [citing further authority].)
The crux of Plaintiff’s amendment is to add the fraud
claim and the punitive damages allegation. Plaintiff sought leave to amend within
about sixteen months of filing the complaint and five months prior to the jury
trial date of August 2023. Plaintiff and Defendant have been engaging in
discovery throughout that time, including the deposition of Defendant’s person
most knowledgeable on February 16, 2023. (Lunn Decl., ¶¶6-12.) Plaintiff argues
the recent facts regarding Defendant’s knowledge and concealment were
discovered during the past months of discovery. Defendant argues the documents
are not recent as they were produced to the same law firm in a different case
in 2019. However, the fact that Defendant has produced the underlying documents
before, even to the same opposing law firm, in another case does not convince
the court that Plaintiff was under an obligation to have those documents in
this case. Accordingly, the court does not find the motion untimely.
Finally, Defendant argues it will be prejudiced by the
motion due to increased costs in preparation and discovery, and a delay in
trial. “Prejudice can include the time and expense associated with opposing a
legal theory that a plaintiff belatedly seeks to change.” (Payton
v. CSI Elec. Contractors, Inc. (2018) 27 Cal.App.5th 832, 849; see also P&D
Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1345
[amendment would require “additional discovery and perhaps result in a demurrer
or other pretrial motion”].)
Here, Defendant argues the underlying conduct would need to
be thoroughly explored in discovery for Defendant to adequately defend against
the new theory. Plaintiff argues there is no prejudice because the issues of
underlying the new claims have been the subject of discovery, and the
allegations giving rise to the new claims were included in the FAC. Given that the
new claim does not appear to expand the scope of factual issues in the case,
the court concludes that Defendant would not be prejudiced by allowing the
amendment. Defendant also argues leave to amend is improper this close to
trial. The trial date is approximately four months away, and the court is
permitted to grant amendment up until and even including during trial. (see
Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 433, 447-9 [reversing denial of
amendment sought one business day before trial].) As the parties are not on the
eve of trial, Defendants will have the opportunity to prepare regarding the new
cause of action.
The motion for leave to amend is granted.
Moving party is directed to give notice.