Judge Theresa M. Traber, Case 20STCV40080 2023-01-06 Tentative Ruling

Judge: Theresa M. Traber, Case: 20STCV40080, Date: 2023-01-06 Tentative Ruling

Case Number: 20STCV40080 Hearing Date: January 6, 2023 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: January 6, 2023 TRIAL DATE: February 28, 2023

CASE: Dr. Melina Abdullah, et al. v. Jacquelyn Lacey, et al.

CASE NO.: 20STCV40080

MOTION FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT

MOVING PARTY: Plaintiffs Melina Abdullah, Dahlia Ferlito, and Justin Marks

RESPONDING PARTY(S): Defendants David Lacey and Jacquelyn Lacey

CASE HISTORY:

· 10/19/20: Complaint filed.

· 11/05/20: First Amended Complaint filed.

· 02/05/21: Second Amended Complaint filed.

· 04/12/21: Third Amended Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiffs allege that they were peacefully protesting outside of Defendants’ home when Defendants conspired to compel them to leave by having Defendant David Lacey threaten Plaintiffs with a handgun when they rang Defendants’ doorbell. Plaintiffs also allege that Defendants made false and misleading statements about the incident when it was under investigation.

Plaintiffs move for leave to file a Fourth Amended Complaint.

TENTATIVE RULING:

Plaintiffs’ Motion for Leave to File a Fourth Amended Complaint is GRANTED.

Plaintiffs are ordered to file a Fourth Amended Complaint incorporating the corrections described below within 10 days of the date of this order.

Current timelines for discovery and for pending motions stand.

DISCUSSION:

Plaintiffs move for leave to file a Fourth Amended Complaint.

Legal Standard

The Court may, “at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, . . . allow the amendment of any pleading.” (Code Civ. Proc. § 576.) A motion to amend a pleading before trial must meet the following requirements:

(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.

(CRC 3.1324.)

Contents of Motion

Plaintiffs included a copy of the proposed fourth amended complaint attached to the motion. (Plaintiffs’ Exh. C.) Plaintiffs have therefore complied with California Rule of Court 3.1324(a)(1). Plaintiff’s motion also indicates which allegations are proposed to be added or deleted by page, paragraph, and line number, as required by California Rule of Court 3.1324(a)(2) and (a)(3).

The Court therefore finds that Plaintiff has complied with the requirements for the motion itself.

Supporting Declaration

The Declaration of Carl. E Douglas does not state the purpose of the proposed amendments. However, the body of the motion states that the purpose of the proposed amendments is to add the estate of David Lacey pursuant to Probate Code section 550(a). David Lacey was previously named as a defendant in this action but passed away on or about September 5, 2022. (Plaintiffs’ Exh. A.) The purpose of these amendments is therefore to permit the action to continue, as provided for by Code of Civil Procedure section 377.40 et seq. The Court finds, based on these statements, that Plaintiffs have substantially complied with Rule 3.1324(b)(1) by clearly stating the effect of the proposed amendments.

The Declaration also does not state why the amendments are necessary and proper, as required by Rule 3.1324(b)(2). However, the body of the motion states that the estate must be added to continue this action. (Se, e.g, Motion p. 3:9-11.) Where a defendant dies and no personal representative is substituted, any judgment rendered is in excess of the court’s jurisdiction. (Herring v. Peterson (1981) 116 Cal.App.3d 608, 611.) Jurisdiction is lost when a defendant is not amenable to service of process or when some other procedural requirement must be fulfilled to bring the defendant before the court, and defendants are not amenable to service of process after death. (Id. at 612.) In light of this rule, the Court finds that Plaintiffs have substantially complied with the requirements of Rule of Court 3.1324(b)(2).

The Declaration states that Plaintiffs received notice of the decedent’s death on or about September 21, 2022. (Douglas Decl. ¶ 3, Exh. A.) The Court therefore finds that Plaintiffs have complied with Rule 3.1324(b)(3).

Neither the Declaration nor the moving papers expressly state why the motion was not filed sooner. The Declaration states that Plaintiffs attempted to meet and confer with defense counsel on December 11, 2022 regarding a stipulation to file a fourth amended complaint, but was not able to complete the process before the deadline to file the motion for this hearing date. (Douglas Decl. ¶ 2.) Neither the Declaration nor the moving papers account for the period between September 21, when notice was received of David Lacey’s death, and December 11, when the meet-and-confer process began. “[E]ven if a good amendment is proposed in proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial.” (Huff v. Wilkins (2006) 138 Cal.App.4th 732, 746.) That said, Defendants do not assert that the motion was improperly delayed, nor do they argue that there is any prejudice that would warrant disregard of the policy in favor of permitting amendment to the complaint. (See Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) Considering the strong presumption in favor of granting leave to amend, the Court finds that Plaintiffs have substantially complied with Rule 3.1324(b)(4).

Defendants’ Opposition

Defendants do not oppose the filing of a fourth amended complaint to substitute David Lacey with his estate, but Defendants argue that the proposed Fourth Amended Complaint is defective in multiple respects. Defendants request that, if leave to amend is granted, the Court condition its ruling on the correction of these defects.

First, Defendants contend that the proposed amended complaint is defective because Plaintiffs have not dismissed David Lacey in his individual capacity. As Plaintiffs argue in reply, Defendants neglect to cite any law requiring that a deceased party be dismissed from an action when the estate is added to the action. As stated above, however, the Court lacks jurisdiction to try a case against a deceased party, as they are not amenable to service of process after their death. (Herring, supra, 116 Cal.App.3d at 612.) The Court therefore lacks jurisdiction to try a case against David Lacey. Instead, any claims that would have been brought against him must be asserted against his successor in interest—i.e., his estate. (See Code Civ. Proc. § 377.40.) The Court therefore agrees with Defendants that David Lacey must be dismissed and substituted with the Estate of David Lacey, pursuant to the Code of Civil Procedure.

Defendants also contend that Plaintiffs neglected to delete the prayer for punitive damages as to the second cause of action for assault and battery. (See Plaintiffs’ Exh. C. pp.16:23-17:9.) A review of the proposed Fourth Amended Complaint reveals that Defendants’ contention is correct. As the parties correctly state, punitive damages claims do not survive the death of the defendant. (Evans v. Gibson (1934) 220 Cal. 476, 790; Civ. Code § 3294.) In reply, Plaintiffs state that the failure to remove any references to punitive damages in the proposed Fourth Amended Complaint was in error. Thus, it appears that the parties agree with respect to this objection.

Defendants’ final argument in opposition is that discovery should not be extended, and the existing motion schedule should not be altered, as none of the underlying facts have changed. Defendants argue that they will be unfairly prejudiced if they are forced to re-file their pending Motions for Summary Judgment or Adjudication based purely on the substitution of David Lacey’s estate. Plaintiffs do not address this argument in their reply brief. Considering the nature of the proposed amendments to the pleading, the Court agrees with Defendants that the discovery and motion schedules should not be altered based on the amendment to the pleading.

CONCLUSION:

Accordingly, Plaintiffs’ Motion for Leave to File a Fourth Amended Complaint is GRANTED.

Plaintiffs are ordered to file a Fourth Amended Complaint incorporating the corrections described above within 10 days of the date of this order.

Current timelines for discovery and for pending motions stand.

Moving parties to give notice.

IT IS SO ORDERED.

Dated: January 6, 2023 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.