Judge Michael E. Whitaker, Case Number: 24SMCV00501, Date: 2024-09-12 Tentative Ruling

Judge: Michael E. Whitaker, Case: 24SMCV00501, Date: 2024-09-12 Tentative Ruling

On February 1, 2024, Plaintiff Calvin Deman Smith (“Plaintiff”) filed the complaint against Defendants as follows:

Plaintiff alleges six causes of action for (1) assault; (2) battery; (3) hate crimes; (4) acts of violence – violation of the Ralph Civil Rights Act (Civil Code, § 51.7); (5) intentional infliction of emotional distress; and (6) negligent infliction of emotional distress; arising from an incident where the minor defendants allegedly threw stink bombs at Plaintiff sitting in his truck through an open window while yelling a racial slur at Plaintiff, and then suddenly stopped their vehicle short while Plaintiff followed them, causing a vehicle collision.

Defendants Dan Rafael and Marjan Shariff answered the complaint on June 21, 2024, and Marjan Shariff, as guardian ad litem for minor Defendant Jacob Rafael, filed a cross-complaint. [2]

Plaintiff now moves for leave to amend the complaint to update the caption to include the newly-named Doe defendants and to eliminate the causes of action for hate crimes and for negligent infliction of emotional distress in their entirety. Plaintiff’s motion is unopposed.

Under Code of Civil Procedure section 473, subdivision (a)(1), “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.”

To wit, without notice to the other party the Court has wide discretion to allow either party (i) to add or strike the name of a party or (ii) to correct a mistake in the name of a party or a mistake in any other respect “in furtherance of justice” and “on any terms as may be proper.” (See Code Civ. Proc., § 473, subd. (a)(1); see also Marriage of Liss (1992) 10 Cal.App.4th 1426, 1429.) Alternatively, after notice to the other party, the Court has wide discretion to allow either party to amend pleadings “upon any terms as may be just.” (See Code Civ. Proc., § 473, subd. (a)(1). Similarly, Code of Civil Procedure section 576 states “Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.”

Judicial policy favors resolution of all disputed matters between the parties and, therefore, leave to amend is liberally granted. (Berman vs. Bromberg (1986) 56 Cal.App.4th 936, 945; Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 488-489 [this has been an established policy in California since 1901] (citing Frost v. Whitter (1901) 132 Cal. 421, 424; Thomas v. Bruza (1957) 151 Cal.App.2d 150, 155).) The Court of Appeal in Morgan v. Superior Court held “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530, citations omitted.) Moreover, “it is an abuse of discretion for the court to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048 [opposing party did not establish harm by the delay in moving to amend the complaint].)

“The court may grant leave to amend the pleadings at any stage of the action.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2024) ¶ 6:636 (hereafter Weil & Brown).) Denial of a motion to amend is rarely justified if the motion is timely made and granting the motion will not prejudice the opposing party. (Id. at ¶ 6:639, citations omitted.) However, if the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the judge has discretion to deny leave to amend. (Id. at ¶ 6:655, citations omitted. Absent prejudice, any claimed delay alone is not grounds for denial. “If the delay in seeking the amendment has not misled or prejudiced the other side, the liberal policy of allowing amendments prevails. Indeed, it is an abuse of discretion to deny leave in such a case even if sought as late as the time of trial. (Id. at ¶ 6:653 (citing Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565).) “Prejudice exists where the amendment would result in a delay of trial, along with loss of critical evidence, added costs of preparation, increased burden of discovery, etc. . . . But the fact that the amendment involves a change in legal theory which would make admissible evidence damaging to the opposing party is not the kind of prejudice the court will consider.” (Weil & Brown, supra, at ¶ 6:656, citations omitted.)

“Even if some prejudice is shown, the judge may still permit the amendment but impose conditions, as the Court is authorized to grant leave ‘on such terms as may be proper.’” (Weil & Brown, supra, at ¶ 6:663, citation omitted.) For example, the court may cause the party seeking the amendment to pay the costs and fees incurred in preparing for trial. (Id. at ¶ 6:664 (citing Fuller v. Vista Del Arroyo Hotel, 42 Cal.App.2d 400, 404).)

Pursuant to California Rules of Court, rule 3.1324(a), a motion to amend a pleading before trial must:

“(1) Include a copy of the proposed amendment or amended pleadings, 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.”

In addition, under Rule 3.1324(b), a motion to amend a pleading before trial must be accompanied by a separate declaration that specifies the following:

In support of the motion, Plaintiff has provided the Declaration of Emanuel Thomas, counsel for Plaintiff. attached to which is a copy of the proposed amended complaint, and which indicates, “My client now wishes to include the minor Defendants fictitiously sued as Does into the caption, and to eliminate the hate crimes and negligent infliction of emotional distress causes of action.” (Thomas Decl. ¶ 3.)

Plaintiff’s counsel has further declared that as part of their meet and confer efforts, the Defendants all agreed to the proposed amendments except for Paul Moradian, counsel for Defendants Dan Rafael, Marjan Shariff, and minor Jacob Rafael. (Thomas Decl. ¶ 4 and Ex. A.)

Although the Thomas declaration includes minimal information, it can be reasonably deduced that the amendment is necessary and proper to clean up the caption and to eliminate two causes of action Plaintiff no longer wishes to pursue, that no new facts gave rise to the proposed amendments, and the motion for leave to amend was not brought sooner because Plaintiff was attempting to get all parties to agree to a stipulation.

Therefore, the Court grants Plaintiff’s unopposed motion for leave to amend the complaint, and orders Plaintiff to file and serve the proposed amended complaint on or before October 3, 2024.

Further, based upon the Court’s ruling on the instant motion, the Court discharges the Order to Show Cause re Monetary Sanctions for failure to serve the summons and complaint set for hearing on September 12, 2024.

Further, on the Court’s own motion, the Court continues the Case Management Conference from September 12, 2024 to January 24, 2024 at 8:30 A.M. in Department 207. All parties shall comply with California Rules of Court, rules 3.722, et seq., regarding Initial and Further Case Management Conferences. In particular, all parties shall adhere to the duty to meet and confer (Rule 3.724) and to the requirement to prepare and file Case Management Statements (Rule 3.725).

The Court orders Plaintiff to provide notice of the Court’s orders and file the notice a proof of service forthwith.

[1] On May 31, 2024, the Court addressed with Plaintiff’s counsel the defects in the complaint regarding which minors were named and were not named in the complaint. Thus, the Court is unclear why Plaintiff filed Amendments to Complaint naming Does 9, 10 and 11when those minors were named in the complaint.

[2] Although the Cross-Complaint was filed by Jacob Rafael through a Guardian Ad Litem, the Court finds that Marjan Shariff has neither applied for appointment to be, nor been appointed as, Jacob Rafael’s Guardian Ad Litem.

DEPARTMENT	207
HEARING DATE	September 12, 2024
CASE NUMBER	24SMCV00501
MOTION	Motion for Leave to Amend Complaint
MOVING PARTIES	Plaintiff Calvin Deman Smith
OPPOSING PARTY	none