Judge: Melissa R. Mccormick, Case: Davidson v. Broms, Date: 2022-12-15 Tentative Ruling

Defendants Brittany A. Broms and Adams, Ferrone & Ferrone’s Motion for Leave to File Amended Answer

Defendants Brittany A. Broms and Adams, Ferrone & Ferrone move for leave to file an amended answer.  For the following reasons, defendants’ unopposed motion is granted.

Defendants seek leave to file an amended answer to identify the code section upon which defendants’ statute of limitation affirmative defense is based, assert other affirmative defenses, and make certain other modifications. 

California Civil Procedure Code § 473 permits the trial court in its discretion to allow amendments to pleadings in the furtherance of justice.  Hulsey v. Koehler (1990) 218 Cal.App.3d 1150, 1159.  Ordinarily, courts should exercise liberality in permitting amendments at any stage of the proceeding.  Id.  “In particular, liberality should be displayed in allowing amendments to answers, for a defendant denied leave to amend is permanently deprived of a defense.”  Id.  Nevertheless, whether such an amendment shall be allowed rests in the sound discretion of the trial court.  Id.  And courts are much more critical of proposed amendments to answers when offered after long unexplained delay or on the eve of trial, or where there is a lack of diligence, or there is prejudice to the other party.  Id.

Defendants did not delay in seeking leave to file an amended answer and trial is scheduled for April 3, 2023, four months from now.  Plaintiff did not oppose defendants’ motion and has not demonstrated any prejudice from permitting defendants to file an amended answer. 

Defendants to give notice and to file and serve the amended answer attached as Exhibit 1 to the Guerin Declaration by December 29, 2022.  Defendants shall file and serve the amended answer notwithstanding the court’s concurrent order granting defendants’ motion to stay this action pending resolution of the appeal in Davidson v. Orange County Probation Department, Court of Appeal Case No. G061552.  As set forth in the concurrent order, the stay will take effect on December 30, 2022.

Defendants Brittany Broms and Adams, Ferrone & Ferrone’s Motion to Stay Case

Defendants Brittany Broms and Adams, Ferrone & Ferrone move for an order staying this case pending resolution of an appeal in the underlying case from which this legal malpractice case arises.  For the following reasons, defendants’ motion is granted.

Plaintiff filed this legal malpractice action against defendants on May 13, 2021.  Plaintiff alleges defendants committed legal malpractice in their representation of plaintiff with respect to plaintiff’s former employer Orange County Probation Department’s notice of intent to discharge plaintiff and with respect to an arbitration with OCPD regarding its termination of plaintiff’s employment.  In November 2019 the arbitrator in the underlying case issued an opinion in OCPD’s favor.  In February 2020 plaintiff filed a petition for writ of mandate (Davidson v. Orange County Probation Department, Orange County Superior Court Case No. 2020-01131841) seeking a writ of mandate directing OCPD to set aside plaintiff’s termination and to restore plaintiff to her pretermination status.  In April 2022 the court entered judgment in OCPD’s favor in the writ proceeding.  In July 2022 plaintiff filed a notice of appeal from the judgment of dismissal in the writ proceeding.  The appeal remains pending; plaintiff’s opening appellate brief has not yet been filed.

“[T]rial courts have inherent authority to stay malpractice suits, holding them in abeyance pending resolution of underlying litigation.”  Adams v. Paul (1995) 11 Cal.4th 583, 593; see also Rosenthal v. Wilner (1988) 197 Cal.App.3d 1327, 1331 (malpractice action stayed pending appeal of underlying suit).

Defendants assert this action should be stayed pending resolution of the appeal because the outcome of the appeal will have a direct bearing on plaintiff’s legal malpractice claim in this case, including on plaintiff’s alleged damages.  Plaintiff opposes a stay of this action because “[p]laintiff is in the middle of conducting substantial discovery in this case,” and plaintiff desires to continue taking discovery in this case while the appeal in the underlying case remains pending to avoid “spoilage of evidence and memories fading regarding the facts of this case.”  Plaintiff thus requests that discovery remain open even if this case is stayed.

Various elements of plaintiff’s legal malpractice claim, such as proximate causation and damages, cannot be ascertained until the resolution of the appeal.  Indeed, plaintiff acknowledges that her “legal malpractice claims depend on [plaintiff] proving, to some degree, her underl[ying] claims in the arbitration proceeding.”  Opp. at 3:26-27.  For this reason alone, this case should be stayed pending resolution of the appeal.

Plaintiff’s contention that discovery should remain open even if the case is stayed is not persuasive.  The fact that “substantial discovery” is underway in this case, and that plaintiff anticipates filing “at least” two motions to compel discovery in this case weigh in favor of a stay.  In light of the potential effect of the appeal on this action, it makes little sense for the parties to spend time and money conducting discovery on plaintiff’s legal malpractice claim until the outcome of the appeal (and its effect, if any, on plaintiff’s claim) is known.   

Defendants’ request for judicial notice of Exhibits 2 through 6 is granted.  Defendants’ request for judicial notice of Exhibit 1 is denied.  It is not necessary to seek judicial notice of documents in the court file for this case.

This case is stayed as of December 30, 2022 pending resolution of the appeal in Davidson v. Orange County Probation Department, Court of Appeal Case No. G061552. 

The April 3, 2023 trial date is vacated.

A status conference to address the status of the stay and the appeal is scheduled for June 8, 2023 at 9:00 a.m. in Department C13.

Defendants to give notice.