Judge Richard S. Whitney, Case Number: 37-2018-00016298-CU-BC-CTL, Date: 2024-06-07 Tentative Ruling

Judge: Richard S. Whitney, Case: 37-2018-00016298-CU-BC-CTL, Date: 2024-06-07 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 05, 2024

06/07/2024 10:30:00 AM C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited Breach of Contract/Warranty Motion Hearing (Civil) 37-2018-00016298-CU-BC-CTL PIMENTA MD PHD VS NUVASIVE INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: PLAINTIFF LUIZ PIMENTA, M.D., PhD'S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT is GRANTED.

Pimenta, M.D. Ph.D. ('Plaintiff') seeks to file a second amended complaint that does not add any new cause of action but clarifies current allegations. NuVasive, Inc. ('Defendant') opposes the motion. The policy permitting amendment is strong, but amendment may be rejected where there is a showing of prejudice or unfair surprise. (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 296–297.) '[I]t is an abuse of discretion 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.) Prejudice that supports denial of leave to amend may include changes that require a prejudicial trial continuance, such as based on the need to conduct more discovery. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487–488.) 'Leave to amend is properly denied when the facts are undisputed and as a substantive matter no liability exists under the plaintiff's new theory.' (Huff v. Wilkins (2006) 138 Cal.App.4th 732, 746.) Defendant argues the amendment would be futile given the applicable four-year statute of limitation.

Plaintiff relies upon the delayed discovery rule. The delayed discovery rule applies to certain kinds of certain breach of contract actions. '[F]or 'certain, rather unusual breach of contract actions,' 'the discovery rule may be applied to breaches which can be, and are, committed in secret and, moreover, where the harm flowing from those breaches will not be reasonably discoverable by plaintiffs until a future time.'' (NBCUniversal Media, LLC v. Superior Court (2014) 225 Cal.App.4th 1222, 1233.) '[T]here is an underlying notion that plaintiffs should not suffer where circumstances prevent them from knowing they have been harmed.' (Id.) While Defendant may ultimately have a meritorious argument, the Court cannot conclude that the undisputed facts preclude the possibility of Defendant having liability. 'A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.' (Geneva Towers Ltd. Partnership v. City of San Francisco (2003) 29 Cal.4th 769, 781 [Citation omitted].) Defendant has not demonstrated that the defect clearly and affirmatively appears on the face of the proposed complaint and that the action is necessarily barred because the delayed discovery rule may not apply as a matter of law. The proposed allegations, and the undisputed facts, do not conclusively indicate that Plaintiff reasonably could have discovered the alleged breaches earlier such that the claims would be barred. Further, Defendant's arguments would not preclude Plaintiff's claims, just limit the amount of damages. It appears to this Court that Defendant would not even be successful on a demurrer. Therefore, the Court rejects Defendant's argument.

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3117281 58 CASE NUMBER: CASE TITLE: PIMENTA MD PHD VS NUVASIVE INC [IMAGED] 37-2018-00016298-CU-BC-CTL Next, Defendant argues that Plaintiff does not have an excuse for the delay in seeking leave to amend.

Plaintiff's counsel declares that '[w]e learned only recently during discovery that NuVasive was going to take an overly narrow reading of the complaint to manufacture some litigation advantage, which is why we are seeking on Dr. Pimenta's behalf to amend his complaint.' Defendant takes issue with Plaintiff's interpretation of the 2012 Agreement (asserting it contains an integration clause that precludes Plaintiff's interpretation), but Defendant does not demonstrate that Plaintiff did not genuinely discover recently that the amendments would be necessary. Further, Defendant does not provide evidence to support its assertion that it will need more than a year to prepare its defense based on the new allegations.

Moreover, Plaintiff demonstrates that Defendant understood, or should have understood, Plaintiff included allegations that indicated Plaintiff was already claiming the scope of damages that would be clarified by the proposed amendment since the beginning of this case.

In short, the Court finds Defendant has not demonstrated that the undisputed facts are such that the new allegations would fail as a matter of law. The Court also finds Defendant has not sufficiently demonstrated that Defendant would be prejudiced by the amendment. The motion is granted.

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3117281 58