Judge: Robert B. Broadbelt, Case: BC724250, Date: 2023-10-24 Tentative Ruling

Case Number: BC724250    Hearing Date: March 26, 2024    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Plaintiff Emilio Reyes

RESPONDING PARTIES:    (1) Defendants Los Indios de San Gabriel and Andrew Salas,          (2) Defendant Lorraine Ann Escobar, and (3) Defendant Alexandra R. McIntosh, APC

Motion for Leave to File Fourth Amended Complaint

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

DISCUSSION

Plaintiff Emilio Reyes (“Plaintiff”) moves the court for an order granting him leave to file a Fourth Amended Complaint (1) to remove the second, third, sixth, eighth, ninth, and 10-14th causes of action against defendants Andrew Salas and Los Indios de San Gabriel, Inc. pursuant to the court’s order sustaining their demurrer to those causes of action without leave to amend; (2) to remove the second, third, 10th, 13th, 16th, and 18th causes of action against defendant Alexandra R. McIntosh, APC, pursuant to the court’s order sustaining her demurrer to those causes of action without leave to amend; (3) to add new facts; and (4) to make other, seemingly stylistic revisions (e.g., making minor corrections on the titles of the false publications).  (Notice of Mot., p. 2, ¶¶ 1-2; Reyes Decl., ¶ 9.)

“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).)¿  “[I]t is . . . true that courts generally should permit amendment to the complaint at any stage of the proceedings, up to and including trial.  [Citations.]  But this policy 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 [internal citations omitted].)

The court finds that (1) Plaintiff did not justify his delay in seeking to amend his complaint, and (2) even if Plaintiff had shown that his delay was justified, the court finds that defendants Andrew Salas, Los Indios de San Gabriel, Inc., Lorraine Ann Escobar, and Alexandra R. McIntosh, APC (“Defendants”) would be unduly prejudiced by this amendment.

First, the court finds that Plaintiff has not justified his delay in seeking to amend his complaint.

Plaintiff states, in his declaration, that he discovered certain new facts (1) on August 25, 2023 and December 28, 2023, upon receiving defendants Andrew Salas and Los Indios de San Gabriel, Inc.’s responses to discovery, and (2) on January 18, 2024, upon receiving discovery responses from defendant Lorraine Ann Escobar.  (Reyes Decl., ¶ 11.)  However, Plaintiff did not adequately explain why he waited until March 4, 2024—which is approximately seven months after the August 25, 2023 production, two months after the December 28, 2023 production, and one-and-a-half months after the January 18, 2024 production—to file this motion.  Moreover, although Plaintiff states that, “[u]pon conducting online research online since the last amendment, [he] discovered the web links described in” various footnotes, Plaintiff did not state (1) on what date he conducted this research, and (2) that he could not have discovered such information sooner had he acted diligently.  (Reyes Decl., ¶ 11.)

Similarly, Plaintiff states that he discovered other facts relating to the alleged publication number eight “on December 15, 2022[.]”  (Reyes Decl., ¶ 12.)  While the court acknowledges that Plaintiff has stated that he “was unable to state specific details [presumably concerning publication eight]” because the USB containing the records was corrupted sometime in the beginning of 2023, Plaintiff did not set forth facts establishing that he attempted to remedy this technological issue in a diligent fashion.  (Ibid.)

Thus, the court finds that Plaintiff has not met his burden to show that he acted diligently in seeking leave to file the proposed Fourth Amended Complaint.  (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 . . . .” ’”].) 

Second, even if Plaintiff had shown that he acted diligently, the court finds that Defendants would be unduly prejudiced if the court were to permit Plaintiff to file his Fourth Amended Complaint.

It appears that Plaintiff intends to allege new factual claims and bases in support of certain of his causes of action, regarding which Defendants may need to conduct discovery and/or challenge the sufficiency of the pleadings.  (Reyes Decl., ¶ 9 [“Footnote 13 includes an additional false and unprivileged publication recently discovered”] [emphasis added]; Reyes Decl., Ex. A, ¶¶ 20-23 [appearing to add entirely new section regarding theories of liability based on agency, aiding and abetting, and conspiracy].) 

Moreover, Plaintiff filed this action on October 4, 2018.  Trial is scheduled to begin on May 15, 2024, i.e., approximately seven weeks after the hearing on this motion.  Permitting Plaintiff to amend his pleading would likely necessitate the continuance of trial and therefore prejudice Defendants.  (Miles v. City of Los Angeles (2020) 56 Cal.App.5th 728, 739 [“Prejudice exists where the proposed amendment would require delaying the trial, resulting in added costs of preparation and increased discovery burdens”]; Lopez Decl., ¶ 17 [defendants Andrew Salas and Los Indios de San Gabriel, Inc. “will require time and expense to file moving or opposing papers to dispose of” additional claims before proceeding to trial].) 

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 Plaintiff’s proposed amendment, it is not in furtherance of justice to grant Plaintiff’s request for leave to file a Fourth Amended Complaint.  (Code Civ. Proc., § 473, subd. (a).)  The court therefore denies Plaintiff’s motion.

ORDER

            The court denies plaintiff Emilio Reyes’s motion for leave to file fourth amended complaint.

            The court orders defendants Andrew Salas and Los Indios de San Gabriel, Inc. to give notice of this ruling.

IT IS SO ORDERED.

DATED:  March 26, 2024

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court