Judge Michael D. Washington, Case Number: 37-2023-00019223-CU-CO-NC, Date: 2024-05-10 Tentative Ruling

Judge: Michael D. Washington, Case: 37-2023-00019223-CU-CO-NC, Date: 2024-05-10 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - May 09, 2024

05/10/2024 01:30:00 PM N-31 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Michael D Washington

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Civil - Unlimited Contract - Other Motion Hearing (Civil) 37-2023-00019223-CU-CO-NC CONVISER VS. REINHOLTZ [IMAGED] CAUSAL DOCUMENT/DATE FILED: Notice of Motion and Supporting Declarations, 03/25/2024

The Motion to Amend and to Add Doe Defendants brought by plaintiff Richard Conviser by and through his attorney-in-fact Mark Hannibal (Plaintiff) is GRANTED.

Clerical Issue – Filing of Second Amended Complaint Plaintiff has improperly filed a 'Second Amended Complaint.' (ROA 87.) While it is true that a proposed amended pleading is generally required to be filed alongside a motion for leave to amend (see California Rules of Court, rule 3.1324(a)(1)), the 'Second Amended Complaint' that Plaintiff filed on April 23, 2024 is not labeled 'proposed' and thus to anyone reviewing the file appears to be an operative pleading.

There is some added confusion in this case because, as will be discussed in greater detail below, the proposed amendments are largely about adding a purported 'doe' defendant. According to the Practice Guide, judicial policies as to how 'doe' amendments are to be done can do not necessarily set forth a clear rule: Leave routinely granted ex parte: In most courts, leave to amend to substitute a defendant's true name for 'Doe' is routinely granted without full notice, or hearing. The application for leave to amend is simply presented to a judge pursuant to CRC 3.12000 et seq.

(Some judges insist on fully noticed hearings because CCP § 473(a) does not specifically provide otherwise.) (Weil and Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group, 2023) ¶ 6:614.) Application to amend: In some courts, plaintiff's attorney must prepare an application and order to amend the complaint. In other courts (e.g., Los Angeles), printed forms are available for amendments of this type; all the attorney has to do is fill in the name of the defendant who is being served as one of the 'Does.' (Weil and Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group, 2023) ¶ 6:613 (some bold added).) The San Diego Superior Court has such an 'amendment' form. (See SDSC CIV-012.) Its use is optional, and Plaintiff has chosen not to use it. Instead, Plaintiff has chosen to file a 'Second Amended Complaint.' But, again, Plaintiff did not have leave to file such a document unless it was labeled a 'Proposed Second Amended Complaint.' That filing now has a file-stamp date of April 23, 2024, which it should not have because leave to file it had not been granted as of that date.

For administrative purposes, and to clear up the record, the Court STRIKES the 'Second Amended Calendar No.: Event ID: TENTATIVE RULINGS

3120935 CASE NUMBER: CASE TITLE: CONVISER VS. REINHOLTZ [IMAGED] 37-2023-00019223-CU-CO-NC Complaint' that was filed on April 23, 2024. (ROA 87.) However, in striking said document, the Court nonetheless takes account of it for purposes of meeting the requirement of California Rules of Court, rule 3.1324(a)(1) that a proposed amended pleading be filed.

Further, for administrative purposes, Plaintiff will need to separately serve and e-file a fresh, clean copy of the proposed 'Second Amended Complaint' on or before Friday, May 24, 2024. Failure to e-file said copy within the time frame may result in rejection of, or summary striking of, the late pleading.

Procedural Issue This case is presently set for trial on August 9, 2024, with trial readiness conference set for July 19, 2024. The addition of Marshall Bloomer (Mr. Bloomer) to this case renders the case not at issue as there is an entire party that needs to be served with the operative pleading, have a chance to file a responsive pleading, and have a chance to participate in discovery.

The Court further notes from the briefing on the instant motion that, according to Plaintiff, Mr. Bloomer previously made efforts to avoid being served. As Mr. Bloomer was effectively dismissed from this lawsuit by not being named in the First Amended Complaint (ROA 34), it appears that Mr. Bloomer may have to be formally served again with the summons and updated operative pleading. As such, it does not appear that this case is prepared to go to trial as of August 9, 2024.

Accordingly, the trial date set for August 9, 2024 is VACATED. The trial readiness conference set for July 19, 2024 is likewise VACATED. This case is set for a Case Management Conference on Friday, August 23, 2024 at 9:00 a.m. in Department N-31. Plaintiff is ORDERED to serve a copy of this Minute Order on Mr. Bloomer alongside the service of the summons and updated operative pleading so that Mr.

Bloomer will be award of the upcoming Case Management Conference.

Merits of Motion This case concerns an elderly landowner and neighbors who allegedly wished to buy a portion of his land. At the risk of overly summarizing the nuanced allegations, the gist of the claims is that the neighbors swindled, hoodwinked, or pressured Plaintiff – who, given his advanced age, and the fact that he is experiencing dementia and is not always lucid and does not always have the capacity to act on his own behalf – to sign documents conveying the part of his property that the neighbors wanted to obtain.

That sale allegedly took place on or about September of 2018.

Plaintiff initially filed this lawsuit in May 2023. Initially, the lawsuit named the neighbors, but it also named the broker that assisted them with the sale transaction. (ROA 1.) That broker is Mr. Bloomer.

Mr. Bloomer filed a Demurrer to the causes of action against him on July 7, 2023. (ROA 19.) At that time, Mr. Bloomer was represented by counsel. This Court never ruled on the merits of that Demurrer because Plaintiff voluntarily dismissed Mr. Bloomer from the case. However, the way in which Plaintiff effected that dismissal was not by filing a formal Request for Dismissal (Judicial Council Form CIV-110); rather, Plaintiff simply filed a First Amended Complaint and omitted Mr. Bloomer's name from that new operative pleading. (ROA 34.) That dismissal via amendment occurred on July 27, 2023.

Plaintiff's position is that there was some sort of 'agreement' between the parties at that time that Plaintiff was not necessarily in possession of enough facts to support a claim against Mr. Bloomer.

According to counsel's declaration in support of the instant motion: '... the information regarding Mr.

Bloomers role in the harm suffered by my client was represented by defendant K. Reinholtz and the representations could not be validated at the time of complaint preparation or service thereof,' and '[c]onsequently, the undersigned agreed to delete Marshall Bloomer from the FIRST AMENDED COMPLAINT, pending additional facts that could be validated.' (ROA 86, Conlon Decl., ¶¶ 16-17.) The 'agreement' being referenced does not appear to have been a written agreement, and the Court takes this aspect of the declaration with some skepticism that counsel for Mr. Bloomer 'agreed' that their client should be dismissed with the understanding that he would be added back into the lawsuit if certain facts were validated.

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3120935 CASE NUMBER: CASE TITLE: CONVISER VS. REINHOLTZ [IMAGED] 37-2023-00019223-CU-CO-NC Some of what makes the present motion difficult is that Plaintiff made his initial allegations in a verified complaint. Moreover, as plaintiff Richard Conviser himself is alleged to have cognitive and capacity issues, the 'verification' had to be done by his attorney-in-fact, Mark Hannibal. As such, it is somewhat understandable that Plaintiff was unable to verify certain facts pertaining to Mr. Bloomer at the early stage of litigation. It further is consistent with the overall purposes of the meet and confer process, as well as the liberal policy favoring leave to amend so that trial can be had on the merits, that Plaintiff omitted Mr. Bloomer from the operative pleading until Plaintiff was in possession of the facts necessary to allege one or more causes of action against Mr. Bloomer.

The defendants, Kurt and Priscilla Reinholtz (Defendants), now oppose the amendment that will add Mr. Bloomer back into this lawsuit on grounds that Mr. Bloomer cannot be a 'doe' defendant because one of the legal requirements is that a plaintiff must be ignorant as to the name of the 'doe' defendant at the time he files the lawsuit. That, however, is not quite the legal standard: Genuine ignorance required: For a defendant to be added as a Doe, at the time of filing the complaint plaintiff not only must have been genuinely ignorant of defendant's identity, but also ignorant of the facts giving rise to the cause of action against that defendant. (Weil and Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group, 2023) ¶ 6:615.4, citing San Diego Navy Broadway Complex Coalition v. California Coastal Comm'n (2019) 40 Cal.App.5th 563, 579 (some bold added).) It appears that the genuineness of Plaintiff's ignorance as to the facts giving rise to the cause of action against Mr. Bloomer is what is at stake in the instant motion. If Plaintiff had enough information to know he could assert a valid cause of action against Mr. Bloomer, then he cannot seek to add Mr. Bloomer as a 'doe' defendant. If Plaintiff did not have enough information at the time he filed the First Amended Complaint, then he can name Mr. Bloomer as a 'doe' defendant.

In considering this question, the Court is mindful of a few principles. One set of principles is that of judicial economy and judicial estoppel. Built into the demurrer statute is a requirement that parties engage in meet and confer prior to moving forward. This process is designed to reduce the number of times a formal motion proceeding is required on a demurrer. It appears that what happened in this case is that Plaintiff took a look at the arguments Mr. Bloomer was making on demurrer and concluded that Mr. Bloomer's arguments had merit. The Court is not presently prepared to examine or analyze, in detail, the arguments that were raised in that earlier demurrer. But, as in other areas of law such as determinations of a 'prevailing party' for purposes of costs or attorney fees, where an act (such as the filing of a demurrer) can 'catalyze' another act (such as a dismissal of the claims subject to that demurrer), the party who achieved the desired end is viewed as the winner. In that sense, it appears here that Mr. Bloomer 'won' or 'prevailed' on his demurrer because the filing of that motion triggered Plaintiff to dismiss his claim against Mr. Bloomer. From the standpoint of judicial economy and the policies underlying the meet and confer requirement, withdrawing claims when a party does not yet have possession of the facts to support those claims is commendable. And, from the perspective of judicial estoppel, it appears that Mr. Bloomer 'won' on his assertion – in the demurrer – that Plaintiff was not actually able to make the necessary allegations against him. As such, applying principles of judicial estoppel, the Court would be inclined to bar Mr. Bloomer from asserting that he cannot be a 'doe' defendant because Plaintiff was not 'ignorant of the facts giving rise to the cause of action' against Mr.

Bloomer since Mr. Bloomer won on a motion that advanced the very notion that Plaintiff was unable to assert any viable causes of action against him. (The Court notes, however, that Mr. Bloomer is not presently opposing the instant motion because he was not served with the instant motion because he is not a party to this case.) The second principle of which the Court is mindful is the liberal policy under California law favoring leave to amend so that trial can be reach on the merits. If Plaintiff did not previously have enough claims to assert a cause of action against Mr. Bloomer, but now does (or at least argues that he does – whether or not he actually does is a question that can be tested via some other procedure such as demurrer), the Calendar No.: Event ID: TENTATIVE RULINGS

3120935 CASE NUMBER: CASE TITLE: CONVISER VS. REINHOLTZ [IMAGED] 37-2023-00019223-CU-CO-NC liberal policy favoring leave to amend weighs strongly in favor of granting the instant motion. 'Ordinarily, the judge will not consider the validity of the proposed amended pleading in deciding whether to grant leave to amend. Grounds for demurrer or motion to strike are premature. After leave to amend is granted, the opposing party will have the opportunity to attack the validity of the amended pleadings.' (Weil and Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group, 2023) ¶ 6:644, citing Kittredge Sports Co. v. Sup.Ct. (Marker, U.S.A.) (1989) 213 Cal.App.3 1045, 1048, also citing Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 760 (internal citation omitted).) What might derail the instant motion would be any evidence or finding that the dismissal followed by the amending to add-back Mr. Bloomer was somehow strategic or designed to evade challenge via demurrer only to force Mr. Bloomer to trial at the proverbial '11th hour' without the benefit of being able to bring substantive motions (demurrers, motions for summary judgment, etc.) or engage in the discovery process. As this case was filed almost exactly one-year prior to this hearing (on May 3, 2023), there appears to be plenty of time, with a trial continuance, for the parties to fully and fairly litigate this matter on its merits. As such, leave to amend is proper.

Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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