Judge: Robert B. Broadbelt, Case: BC665258, Date: 2023-12-21 Tentative Ruling

Case Number: BC665258    Hearing Date: December 21, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Plaintiff Madeline Moore, individually and as successor trustee of the Moore Family Trust dated June 1, 1983

RESPONDING PARTIES:    Defendants Dennis Riley and Mesisca, Riley & Kreitenberg LLP

Motion for Leave to File Second Amended Complaint

The court considered the moving, opposition, and reply papers filed in connection with this motion.

DISCUSSION

Plaintiff Madeline Moore (“Plaintiff”) moves the court for an order granting her leave to file a Second Amended Complaint against defendants Dennis P. Riley and Mesisca, Riley & Kreitenberg LLP (“Defendants”) in this action (1) to add a second cause of action for breach of fiduciary duty; (2) to add a third cause of action for constructive fraud; (3) to add a fourth cause of action for promissory fraud; (4) to add a fifth cause of action for financial elder abuse; and.  (5) to add a claim for punitive damages.  (Notice of Mot., p. 2:1-5.)

“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….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….”  (Code Civ. Proc., §¿473, subd. (a)(1).) 

The court finds that it is not in furtherance of justice to allow Plaintiff to amend her complaint in order to add new causes of action for fraud and elder abuse and a claim for punitive damages against Defendants and therefore denies Plaintiff’s motion.  (Code Civ. Proc., § 473, subd. (a)(1).)

Plaintiff asserts that she discovered the facts giving rise to the proposed amendment during Defendants’ depositions, which were taken at the end of June 2023.  (Steiner Decl., ¶ 10.)  Specifically, Plaintiff’s counsel asserts that, during those depositions, “it was revealed, for the first time, that [Defendants] could offer no rational explanation for why after an August 13, 2015 modification to their initial fee agreement with [P]laintiff . . ., they continued to bill [P]laintiff at the hourly rate of $500 per hour instead of the agreed upon hourly rate of $200[,]” or why they continued to bill Plaintiff at that rate.  Similarly, Plaintiff’s counsel asserts that it was discovered that Defendants could not justify why they billed Plaintiff at the rate of $500 per hour instead of the $400 per hour in connection with a second retainer agreement.  (Ibid.)  

The court finds that (1) Plaintiff has not justified the delay in seeking leave to amend the complaint to add the proposed causes of action and claims, and (2) even if Plaintiff had justified this delay, Defendants have shown that they would be unduly prejudiced by this amendment.

“Generally, leave to amend should be liberally granted.  However, unwarranted delay justifies denial of leave to amend.”  (Miles v. City of Los Angeles (2020) 56 Cal.App.5th 728, 739.)  Thus, “this policy [of permitting amendment to complaints at any stage in the proceeding] applies ‘ “only ‘[w]here no prejudice is shown to the adverse party.’ ” ’”  (Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 175.)  “Prejudice exists where the proposed amendment would require delaying the trial, resulting in added costs of preparation and increased discovery burdens.”  (Miles, supra, 56 Cal.App.5th at p. 739.)

Plaintiff filed this action against Defendants on June 15, 2017, and filed the operative First Amended Complaint on January 8, 2018.  The First Amended Complaint includes claims that, inter alia, Defendants breached their fiduciary duties by billing Plaintiff for unnecessary work and charging unreasonable and unconscionable fees.  (FAC ¶ 29.)  Thus, although Plaintiff has asserted claims against Defendant since the filing of her First Amended Complaint concerning Defendants’ billing practices, Plaintiff has not presented sufficient evidence or argument explaining how the facts giving rise to the proposed causes of action – based on Defendants’ impermissible billing practices, as set forth above – could not have been discovered earlier by exercising due diligence.  (Melican, supra, 151 Cal.App.4th at p. 175 [“appellate courts are less likely to find an abuse of discretion where, for example, the proposed amendment is ‘ “offered after long unexplained delay . . . or where there is a lack of diligence . . . .” ’” ].)  

Further, the court finds that Defendants would be unduly prejudiced by Plaintiff’s proposed amendment. 

First, as noted by Defendants, this case was filed on June 15, 2017 and trial is currently scheduled to begin on January 17, 2024.  Second, adding the proposed fraud and elder abuse causes of action would substantially change the theory of this legal malpractice action.[1]  Third, Defendants have presented evidence showing that they would be prejudiced by this amendment because it would require them (1) to file a demurrer to the new causes of action, (2) to file a motion to strike the request for punitive damages, and (3) to conduct discovery relating to the new causes of action, including (i) propounding discovery regarding Plaintiff’s discovery of the alleged fraud and damages, (ii) propounding interrogatories, requests for production of documents, and requests for admissions, and (iii) noticing Plaintiff’s deposition.  (Nemecek Decl., ¶¶ 4-5.)  As set forth above, “the liberal policy favoring leave to amend ‘applies “ ‘only “[w]here no prejudice is shown to the adverse party.” ’ ” ’”  (Miles, supra, 56 Cal.App.5th at p. 728.)

Thus, the court finds that, because Defendants will be unduly prejudiced by the amendment, it is not in furtherance of justice to grant Plaintiff’s request for leave to file a Second Amended Complaint.  (Code Civ. Proc., § 473, subd. (a).)

ORDER

            The court denies plaintiff Madeline Moore’s motion for leave to file a second amended complaint.

            The court orders defendants Dennis P. Riley and Mesisca, Riley & Kreitenberg LLP to give notice of this ruling.

IT IS SO ORDERED.

DATED:  December 21, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court