Judge: Mark H. Epstein, Case: 20SMCV00660, Date: 2023-02-09 Tentative Ruling

Case Number: 20SMCV00660    Hearing Date: February 9, 2023    Dept: R

The motion for leave to file a first amended complaint and re-open discovery is DENIED WITHOUT PREJUDICE.

Plaintiffs filed a professional negligence and breach of contract action against defendant.  They now seek to file a first amended complaint and re-open discovery.  At present, trial is set for May 1, 2023, and the discovery cut-off has come and gone.

The court notes that plaintiffs attempted to obtain the same relief on December 19, 2022.  That motion was denied as untimely and it did not comply with California Rule of Court 3.1324.  As to re-opening discovery, the court stated that it was not clear that re-opening was needed to the extent that the new causes of action were based on the same facts.  Further, in that motion, plaintiffs’ counsel admitted that he was not sure what discovery was done by prior counsel.

In the instant motion, plaintiffs seek to add causes of action for breach of fiduciary duty, intentional infliction of emotional distress, and negligent infliction of emotional distress.  The court approaches the motion for leave understanding that leave is liberally granted absent prejudice.  (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739.)  However, prejudice can be established where the amendment would require continuing the trial.  (Magpali v. Farmer’s Group, Inc. (1996) 48 Cal.App.4th 471.)  As to re-opening discovery, whether to grant or deny the motion is committed to the court’s discretion.  In deciding how to exercise that discretion, the court considers the factors set forth in Code of Civil Procedure section 2024.050, subdivision (b).

Again, the court does not understand the need for the new claims.  The breach of fiduciary duty cause of action seems duplicative with the professional negligence claim.  If it is different in some meaningful respect, plaintiffs have yet to explain it.  As for the emotional distress causes of action, the court does not see the merit, or even potential merit, in them.  It is entirely possible that defendant gave bad financial advice to plaintiff and that the bad advice caused plaintiff to incur a higher tax bill than was appropriate.  But absent some reasonable allegation that the bad advice was deliberate and motivated by ill will or something, giving bad professional advice is not the kind of conduct that gives rise to an intentional infliction of emotional distress claim.  And the negligent infliction cause of action fails because the allegations here (even were they egregious enough) do not fall within the extremely narrow purview of that tort.  Rather, this seems more of an attempt to find a way to get intentional tort damages for a breach of contract or negligence action.

As for discovery, plaintiffs state that both parties would benefit from additional discovery.  But that is hardly an adequate showing.  If both parties would truly benefit, then they can stipulate to re-open discovery; the court would almost certainly approve such a stipulation.  Absent such an agreement, though, no showing has been made that warrants re-opening discovery. 

The real issue seems to be that plaintiffs’ prior counsel may not have conducted all the discovery that was appropriate due to medical reasons.  For example, there were no depositions and the written discovery was purportedly not “finalized.”  That may or may not be, but to re-open discovery (even if doing so would not jeopardize the trial date) trial plaintiffs will need to make a more granular showing setting forth what additional discovery plaintiffs seek to take and why, as well as good cause therefor.  Further, the court is confident that re-opening discovery as plaintiffs currently suggest will mean that the trial date cannot stand.  Accordingly, the court is inclined to DENY that aspect of the motion as well.

The court was considering denying the motion with prejudice.  However, the court will give plaintiffs one additional chance if they want to take it.  If they do, they will need to make a real and compelling showing and they will need to be specific.