Judge Thomas Falls, Case 22PSCV00487 2023-02-06 Tentative Ruling

Plaintiff Christopher Bonilla (“Plaintiff”) alleges as follows: On or about November 10, 2018, Plaintiff needed to pull over while driving his vehicle on the Eastbound interstate 10 freeway. Plaintiff could not see the blunt end of the temporary k-rails on the shoulder of the freeway in the dark and collided with them, which resulted in catastrophic injuries to Plaintiff, including but not limited to a severed right leg, traumatic brain injury, broken left clavicle, cut to the top his head, cut to the back of his right hand, and abrasion to the right side of his foot. Plaintiff was a professional Muay Thai fighter at the time of the accident.

On November 27, 2019, Plaintiff filed a Second Amended Complaint (“SAC”), asserting causes of action against Defendants California Department of Transportation (“CalTrans”), Ames Construction Inc. (“Ames”, formerly Doe 1) (collectively, “Defendants”) and Does 2-100 for:

Plaintiff brings forth the motion pursuant to California Code of Civil Procedure (“CCP”) sections 473(a)(1) and 576. (Motion p. 10:25-26.)

CCP section 437 subdivision (a)(1) provides, in relevant part: “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; and may, upon like terms, enlarge the time for answer or demurrer.¿ 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; and may upon like terms allow an answer to be made after the time limited by this code.”¿

Under California Rules of Court Rule, rule 3.1324, subdivision (a),¿a motion to amend a pleading shall:¿

(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.¿¿

In addition, under California Rules of Court, Rule 3.1324, subdivision (b),¿a¿separate declaration¿must accompany the motion and must specify:¿¿

(3) when the facts giving rise to the amended allegations were discovered; and¿

The Court’s discretion to grant leave “should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.”¿ (Kittredge Sports Co. v. Superior Court¿(1989) 213 Cal.App.3d 1045, 1047.)¿ When a party moves to amend a pleading, “courts generally should permit amendment to the complaint at any stage of the proceedings, up to and including trial. [Citations.]” (Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 175) (emphasis added). In ruling on this type of motion, prejudice to another party is the main concern. (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486.) The type of prejudice the court is to be concerned with should be something beyond simply having to cope with a potentially successful new legal theory of recovery that has been revealed during discovery. (Ibid.) Instead, the court should look for delays in the trial date, loss of critical evidence, extensive increase in the costs of preparation and other similar circumstances that create prejudice to another party. (Melican, supra, 151 Cal.App.4th at p. 176) (emphasis added).

Moreover, “even if a good amendment is proposed in proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial.” (Id. at p. 175.) “Thus, 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....’” (Id., quoting Hulsey v. Koehler (1990) 218 Cal.App.3d 1150, 1159.)

Plaintiff seeks to add a claim for punitive damages against Defendant Ames (not against CalTrans) based upon “newly discovered evidence . . . that Ames unequivocally engaged in reckless endangerment of public safety, arising from the same conduct that creates the liability in this case, and which also harmed this Plaintiff” such that the “conduct rises to the level of malice and oppression.”[3] (Motion p. 2.) More specifically, Plaintiff explains that it was not until it obtained the Declaration of Shawn Rogers (“Rogers”) in December 2022 that Plaintiff learned of other collisions within 1000 feet of where Plaintiff’s accident occurred, indicating how dangerous the construction zone was for motorists. Yet, despite having this knowledge, Ames “ke[pt] [the accidents] under wraps” and elected to ignore it by ignoring plans that called for a crash cushion to be placed at the accident site. (Motion pp. 13, 14.)[4]

In Opposition, Defendant Ames focuses solely on the potential prejudice created by Roger’s anticipated testimony.[5]

Accordingly, the issue before the court is whether allowing leave to amend a complaint for punitive damages based upon newly discovered evidence would be prejudicial to Defendant Ames when discovery has closed and the parties have already submitted their joint trial witness list, even though Ames had ample time to depose Rogers.

Defendant Ames argues that they would be prejudiced with the expected testimony of Rogers because (i) at a minimum effective cross-examination is required but that would require reopening discovery, (ii) given Rogers’ anticipated testimony, Defendant Ames would need to conduct further discovery, and (iii) Rogers’ attorney does not permit Defense Counsel to speak to Rogers.

Of import, Defendant Ames appears to be amenable to the motion contingent upon them taking the deposition of Rogers. (Opp. p. 4 [“At a minimum therefore, the motion should not be granted unless and until there is time to depose Mr. Rogers with regard to the matters upon which he offered his declaration.], see also p. 4 [“Absent that occurring, Plaintiff’s motion should be denied.”].)

To the extent, however, that Plaintiff opposes reopening discovery, the court finds it has good grounds to do so.

After all, “Ames always knew of Rogers, but did not disclose his identity until March 2022 (despite being served with an interrogatory seeking that information in June 2020). Even when Rogers’ identity was belatedly disclosed in depositions, Ames did nothing. Even when the parties exchanged trial witness lists and Plaintiff disclosed his intention to call Rogers to testify at trial, Ames did nothing.” (Reply p. 5.)

Lastly, to the extent that Defendant Ames would be prejudiced, the court is to examine factors such as delays in the trial date, loss of critical evidence, extensive increase in the costs of preparation and other similar circumstances that create prejudice. Here Defendant Ames argues that granting the Plaintiff’s motion would result in the potential need for further discovery, which would cause a trial delay, which is problematic in that this case is already on the long cause list waiting simply for a trial court to open up..

Plaintiff argues that without the amendment, the party to be prejudiced at trial is Plaintiff because Ames did not divulge the existence of Rogers despite being asked numerous times and despite three years to do so.[6]

Plaintiff’s claims that the “newly discovered” evidence indicates that (i) Ames had alleged knowledge about the dangers of the construction zone, (ii) by the time of Plaintiff’s accident Defendant Ames had replaced over 50% of the sand barrels it had placed due to damage, and (iii) that Ames had an obligation under his contract with CalTrans to place crash cushions next to blunt ends but did not do so, this may support the recovery of punitive damages. (See Seimon v. Southern Pac. Transportation Co. (1977) 67 Cal.App.3d 600, 609 [In discussing a case wherein the “record is replete with evidence pointing to the peculiarly dangerous character of the [street] crossing to southbound motorists,” the appellate court held that there was no such a “paucity of evidence on the issue of malice as to preclude the jury from considering the propriety of an award of punitive damages against defendant.”], see also Peterson v. Superior Court (1982) 31 Cal.3d 147, 158 [“Nonintentional torts may also form the basis for punitive damages when the conduct constitutes conscious disregard of the rights or safety of others . . . Nonintentional conduct comes within the definition of malicious acts punishable by the assessment of punitive damages when a party intentionally performs an act from which he knows, or should know, it is highly probable that harm will result.”].)

[1] Much of the procedural history has been omitted as numerous filings have been made in this case.

[2] Plaintiff has complied with the California Rules of Court. (See Marchino Decls., Exs. 47, 48.)

[3] Plaintiff explains that Defendants’ previous counsel refused to Bates-stamp their production of various documents; however, Defendants’ new trial counsel agreed to review the status of production, resulting in a production of “91,183 pages of never-before produced documents that shed light on the subject of this motion.” (Motion p. 2.) Additionally, during the March 18, 2022 deposition of Defendants’ person most knowledgeable (“PMK”), supervising transportation engineer Ken Young, the PMK testified that he had reviewed an accident records database and was unable to identify any other prior fixed object collisions within one mile of the Bonilla accident location. (Motion p. 2, see also Ex. 1.) Subsequently, upon a review of the 91,183 pages of new documents produced this year, Plaintiff discovered the facts it seeks punitive damages upon. (Motion p. 2.) Questions, when exactly was the “new” 91,183 pages turned over? And where they previously turned over but not Bate stamped?

[4] According to Plaintiff’s evidence, Rogers “was employed with Ames Construction, Inc. (“Ames”), between 2014 and 2019, serving as the Ames project manager for contract no. 07-1170U4 to enhance a portion of the I-10 freeway in Baldwin Park and West Covina (the “Construction Project”). As project manager for the Construction Project, [he] managed the project for Ames and had the same authority as an officer of the company to sign contract change orders and to represent and act on behalf of Ames . . .[He] was construction manager on November 10, 2018, the date of the accident that is the subject of this lawsuit.” According to Roger’s declaration, he “became aware of numerous collisions involving the public and fixed objects within the construction zone. These accidents often would not be reported to CHP, because they involved single vehicle collisions, sometimes in the middle of the night, and the drivers involved were able to simply drive away from the accident. During the time [he] was working on the Construction Project, it was common to report to work on a Monday morning and observe detached vehicle parts on the freeway evidencing the accidents that had occurred over the weekend.” (Plaintiff’s Evidence, Ex. B, p. 13 of 312 of PDF) (emphasis added).

[5] Defendant Ames argues Rogers’ personal knowledge of alleged unreported accidents is insufficient to establish punitive damages because his knowledge is from events from years before and approximately one mile away from Plaintiff’s accident. The defense may be correct yet absent a meaningful deposition of Rogers. The court has insufficient information to determine whether or not the amendment would be appropriate.

[6] Though, the court notes that much of the specific points about Rogers are raised in Plaintiff’s Reply; therefore, the court will allow Defendant Ames to thoroughly address these points during the hearing.

[7] The court wants to hear from the parties as to how the Rogers declaration was obtained? When Plaintiff discovered Roger’s identity and how? And for all parties why wasn’t Roger’s deposition taken years ago? Was Rodgers identity hidden from Plaintiff’s?