Judge: Michael Shultz, Case: 22CMCV00347, Date: 2023-03-09 Tentative Ruling

Case Number: 22CMCV00347    Hearing Date: March 9, 2023    Dept: A

22CMCV00347 Kimberly King v. Venice Family Clinic

Thursday, March 9, 2023 at 8:30 a.m.

[TENTATIVE] ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

I.        Background                      

The First Amended Complaint alleges that Defendant and its employees vaccinated Plaintiff’s minor daughter against COVID-19 without Plaintiff’s permission. The complaint alleges claims for negligence and interference with Plaintiff’s parental rights causing Plaintiff emotional distress as the vaccinations are against Plaintiff’s religious beliefs and Defendant did not obtain Plaintiff’s consent.

II.      Arguments

            Plaintiff requests an order for leave to file a Second Amended Complaint to add as a Plaintiff, Bella King-Harvey, Plaintiff’s daughter who was vaccinated and now suffers recurring headaches as a result of the vaccine. Defendant will not suffer any prejudice.     

            Defendant filed a notice of non-opposition and reserves its right to challenge the pleading by way of demurrer and motion to strike.

III.    Legal Standards

             Leave to amend is permitted at the court’s discretion upon any terms that may be just. (Code Civ. Proc., § 473 subd. (a)(1)). The statute is liberally construed to permit amendment of the pleadings “unless an attempt is made to present an entirely different set of facts by way of the amendment.” (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 760). The motion must be supported by a declaration stating the effect of the amendment, why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered; and the reasons why the request for amendment was not made earlier." (Cal. Rules of Court, Rule 3.1324.)

            If the motion is timely made, and the granting of the motion will not result in prejudice to the opposing party, it is error to refuse permission to amend. (Morgan v. Superior Court of Cal. In and For Los Angeles County (1959) 172 Cal.App.2d 527, 530.) Where denial of the motion will result in a party being deprived of the right to assert a meritorious cause of action, “it is not only error but an abuse of discretion.” Id. Amendments are permitted up to the date of trial or during trial where no prejudice is shown to the adverse party. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761).

IV.                Conclusion

            As Defendant has not shown any prejudice resulting from an order permitting amendment, the motion is GRANTED. Plaintiff is ordered to file the proposed Second Amended Complaint within five days of this order.