Judge: Mark H. Epstein, Case: 20SMCV00660, Date: 2022-12-19 Tentative Ruling

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Case Number: 20SMCV00660    Hearing Date: December 19, 2022    Dept: R

The motion for leave to amend is DENIED WITHOUT PREJUDICE.  First, the motion is untimely (it was not filed and served on 16 court days’ notice).  Putting that to one side, though, the motion is still not sufficient.

Plaintiff seeks to adda cause of action for breach of duty and infliction of emotional distress.    The court is aware that such motions are liberally granted.  Plaintiff also moves to re-open discovery.  Those motions are not as liberally granted and the need to do additional discovery, especially near the trial date, is prejudicial. 

Essentially, plaintiff contends that the new causes of action will require discovery and that plaintiff has recently retained new counsel who figured out that more is needed.  And plaintiff contends that defendants will suffer no prejudice because they need to take discovery as well.

The court agrees with the defense that plaintiff has not adequately explained why the amendment is necessary or satisfies Rule 3.1324 (nor has plaintiff met the procedural requirements).  Further, the negligent infliction of emotional distress seems to be a part of the negligence claim.  It is permissible to sue for negligence and obtain emotional distress where the law so allows.  If that is what plaintiff is doing, it is better for that to be clear. If plaintiff is alleging a separate negligent infliction claim, though, she needs to do so clearly and plainly.

As to the need for more discovery, if, as plaintiff claims, the causes of action are all based on the same underlying facts, then the new causes of action do not warrant re-opening discovery.  And plaintiff’s reply admits that some discovery was done by prior counsel, but plaintiff is not sure what exactly was done.

At bottom, plaintiff needs to bring the motion again and do it by the numbers.  At that point, the court will be in a better position to assess the need to allow an amendment and whether discovery should be re-opened (and what effect, if any, it will have on the trial date).