Judge: Lynette Gridiron Winston, Case: 24PSCV00487, Date: 2024-10-07 Tentative Ruling
Case Number: 24PSCV00487 Hearing Date: October 7, 2024 Dept: 6
CASE NAME: Donald Alan Newcomb v. John Anthony Garduno Protic, et al.
Plaintiff’s Motion for Leave to File First Amended Complaint
TENTATIVE RULING
The Court GRANTS Plaintiff’s motion for leave to file First Amended Complaint. Plaintiff must file and serve the proposed First Amended Complaint within five days of the Court’s order.
Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order.
BACKGROUND
This is a personal injury action. On February 16, 2024, plaintiff Donald Alan Newcomb (Plaintiff) filed this action against defendants John Anthony Garduno Protic (Protic), PDQ Enterprises, Inc., and Does 1 to 50, alleging causes of action for motor vehicle and general negligence. On April 26, 2024, Plaintiff filed a Doe amendment naming Ferreira Coastal Construction Co. (Ferreira) as a defendant. On July 2, 2024, defendant PDQ Enterprises, Inc. was dismissed per stipulation of the parties.
On September 18, 2024, Plaintiff moved for leave to file a First Amended Complaint. On September 30, 2024, Protic opposed the motion. On September 30, 2024, Plaintiff replied.
LEGAL STANDARD
Code of Civil Procedure section 473, subdivision (a)(1) provides, in relevant part: “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.” (Code Civ. Proc., § 473, subd. (a)(1).) 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.)
Under Rule 3.1324, subdivision (a) of the California Rules of Court, 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. (Cal. Rules of Court, rule 3.1324, subd. (a).)
Under Rule 3.1324, subdivision (b) of the California Rules of Court, 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. (Cal. Rules of Court, rule 3.1324, subd. (b).)
PRELIMINARY ISSUES
Plaintiff’s moving papers and Protic’s opposition are both untimely per the October 7, 2024, hearing date. (Code Civ. Proc., § 1005, subd. (b).) Nevertheless, the Court exercises its discretion to still consider the motion, but admonishes the parties to comply with the requirements of the Code of Civil Procedure going forward. (See Cal. Rules of Court, rule 3.1300, subd. (d); Juarez v. Wash Depot Holdings, Inc. (2018) 24 Cal.App.5th 1197, 1202.)
DISCUSSION
Summary of Arguments
Plaintiff seeks leave to file a First Amended Complaint (FAC) adding a claim for punitive damages and an allegation that Protic fled the scene of the accident in violation of Vehicle Code section 20002, subdivision (a). Plaintiff contends these proposed amendments allow Plaintiff to pursue punitive damages against Protic and Ferreira. Plaintiff contends the proposed amendment is necessary and proper to bolster allegations in the original complaint and add a demand for punitive damages. Plaintiff indicates that Plaintiff’s counsel received a notice of restitution hearing on August 29, 2024, involving criminal charges against Protic. Plaintiff indicates that these facts were learned after the filing of the original complaint, and that Plaintiff was not aware that the recommended criminal charges were brought against Protic.
In opposition, Protic and Ferreira contend the motion should be denied because Plaintiff bears the burden of proving by clear and convincing evidence that Protic and Ferreira acted with malice, oppression, or fraud, and must plead specific facts. Protic and Ferreira contend that California Police Reports do not constitute sufficient or reliable evidence because the investigating police officer did not witness the accident and relies on hearsay in preparing the report.
Analysis
The Court finds Plaintiff has substantially complied with the requirements of Rule 3.1324 of the California Rules of Court. Plaintiff attached the proposed FAC and explained the effect of the proposed amendment, why it is necessary and proper, when the facts giving rise to the amendment were discovered, and why the amendment was not made earlier. (Cal. Rules of Court, rule 3.1324; Sarkissian Decl., ¶¶ 4-9, Exs. 1, 2.) Protic and Ferreira also provided no evidence of prejudice in permitting amendment at this time, and the Court notes that this action is only eight months old right now. (Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564.)
The Court further finds Protic and Ferreira’s opposition arguments regarding clear and convincing evidence unpersuasive, as this is only the pleading stage of this action, not an evidentiary dispute. The parties can resolve any pleading issues on a demurrer or motion to strike. (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.)
Based on the foregoing, the Court GRANTS the motion.
TENTATIVE RULING
The Court GRANTS Plaintiff’s motion for leave to file First Amended Complaint. Plaintiff must file and serve the proposed First Amended Complaint within five days of the Court’s order.
Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order.