Judge: Stephen P. Pfahler, Case: 21CHCV00803, Date: 2022-10-18 Tentative Ruling
Case Number: 21CHCV00803 Hearing Date: October 18, 2022 Dept: F49
Dept.
F-49
Date:
10-18-22
Case
#21CHCV00803
LEAVE TO AMEND
MOVING
PARTY: Plaintiff, Brando Neville
RESPONDING
PARTY: Defendant, Newhall School District, et al.
RELIEF
REQUESTED
Motion
for Leave to Amend
SUMMARY
OF ACTION
Plaintiff
Brando Neville is/was a student within the Newhall School District. During the
2018-2019 school year, Brando was allegedly bullied by a fellow student on
campus. Although complaints were made to school principal, Defendant Chad Rose,
no follow-up investigation occurred. Brando was later placed in the same remote
learning group with said bully, and upon his return to Stevenson Ranch
Elementary School in September 2021, in-person bullying resumed. Plaintiff
alleges even after the numerous complaints, district compliance officer,
defendant Amanda Montemayor, only completed the investigation on October 15,
2021.
On
October 13 and October 22, 2021, Patrick Neville filed a complaint, and first
amended complaint for Negligence on behalf of Brando Neville. The court
appointed Patrick Neville guardian ad litem on October 19, 2021.
On
February 16, 2022, the court sustained the demurrer to the first amended
complaint with leave to amend. On March 28, 2022, Plaintiff in pro per filed a
second amended complaint for “Negligence, Fraudulent Misrepresentation,
Intentional Infliction of Emotional Distress.” The second amended complaint
also added new defendant Jeffrey Pelzel.
On
May 31, 2022, the court sustained the unopposed demurrer to the second amended
complaint with leave to amend. At the concurrently set OSC re: Sanctions
Against the Plaintiff for Failure to Appear on April 22, 2022, the court again
noted the second lack of Plaintiff’s appearance, and dismissed the entire
action.[1] All future dates were
vacated. On August 18, 2022, the court granted Plaintiff’s motion to vacate the
dismissal and restored the action to the civil calendar.
RULING: Granted.
Plaintiff
Brando Neville moves for leave to file a third amended complaint in order to
file a complaint with new causes of action for Violation of 42 U.S.C. 1983
(Denial of Equal Protection under the 14th Amendment), and 42 U.S.C.
12101 (Americans with Disabilities Act) only. The proposed third amended
complaint also removes the individual defendants from the action, thereby
leaving the Newhall School District as the sole defendant. Newhall School
District “in response” agrees to the filing of the proposed third amended
complaint. The court electronic filing system shows no reply at the time of tentative
ruling publication cutoff.
A
motion for leave to amend must comply with the requirements set forth in
California Rules of Court Rule 3.1324, which states as follows:
“(a) Contents of motion
A motion to amend
a pleading before trial must:
(1)
Include
a copy of the proposed amendment or amended pleading, 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.
(b) Supporting
declaration
A separate
declaration must accompany the motion and must specify:
(1) The effect of the amendment;
(2) Why the amendment is necessary and
proper;
(3) When the facts giving rise to the
amended allegations were discovered; and
(4)
The
reasons why the request for amendment was not made
earlier…”
Dilatory delays and prejudice to the opposing
parties is a valid ground for denial. (Hirsa
v. Superior Court (1981) 118 Cal.App.3d 486, 490.) Prejudice exists where the amendment would
require delaying the trial, resulting in loss of critical evidence, or added
costs of preparation such as an increased burden of discovery. (Magpali v. Farmers Group, Inc. (1996) 48
Cal.App.4th 471, 486-488.)
Leave to amend is generally liberally granted.
(Code Civ. Proc., § 473(a); Mesler v.
Bragg Management Co. (1985) 39 Cal.3d 290, 296.) The court will not
generally consider the validity of the proposed amended pleading in ruling on a
motion for leave, instead deferring such determinations for a demurrer or
motion to strike, unless the proposed amendment fails to state a valid claim as
a matter of law. (Kittredge Sports Co. v. Sup.Ct. (Marker,
U.S.A.) (1989) 213 Cal. App.3d 1045, 1048; California Casualty Gen. Ins. Co. v. Superior Court (1985) 173
Cal.App.3d 274, 280–281 disapproved of on
other grounds by Kransco v. American Empire Surplus Lines Ins. Co. (2000)
23 Cal.4th 390.)
The declaration in support of the motion states
the motion is brought in order to successfully plead non-barred claims, as
raised in the prior, successful demurrers. [Declaration of William Crosby.] The
declaration of Crosby incorporates a draft of the changes. [Id., Ex. 1.]
The
subject motion was filed within weeks of the court ordering Plaintiff to file
the third amended complaint following the demurrer to the second amended
complaint, and August 18, 2022, order vacating the dismissal. The court
finds the motion and later substitution of counsel into the case sufficiently
accounts for the timing and showing of diligence. The court also finds the
proposed changes arise from the prior operative pleading. Given the lack of
opposition to the proposed changes, the court finds no showing of prejudice as
a result of the amended pleading.
The motion is therefore granted. Plaintiff is ordered to separately
file the third amended complaint within 10 days of this order.
Plaintiff to give notice.