Judge: Timothy Patrick Dillon, Case: 22STCV08019, Date: 2023-01-19 Tentative Ruling
Case Number: 22STCV08019 Hearing Date: January 19, 2023 Dept: 73
CLAUDIA NEUMAN,
individually and successor in interest of Marian Neuman v EVIE RYLAND
(22STCV08019)¿
Counsel for Defendant/Cross-Complainant (Movant): Herbert N.
Wolfe, Tom N. Yacko
(FISHER, KLEIN & WOLFE LLP)
Counsel for Plaintiff/Cross-Defendant (Opposition): Vadim F.
Frish, Matthew Ames
(Frish Law Group, APLC)
Motion for
Leave to File First Amended Cross-Complaint
(filed 12/21/2022)¿
Tentative Ruling
Defendant/Cross-Complainant’s Motion for
Leave to File First Amended Cross-Complaint is granted. Moving party is ordered
to file and serve the First Amended Complaint within five (5) days.
I.
Background
This case arises out
of a complaint for elder abuse filed by Plaintiff and Cross-Defendant Claudia
Neuman against Defendant and Cross-Complainant Evie Ryland (“Ryland”). In the
Complaint, Plaintiff and
Cross-Defendant Claudia Neuman alleges, among other things, that Ryland exerted
undue influence on Marian Neuman (“Decedent”), Claudia Neuman’s stepmother, by
secretly videotaping Decedent while intoxicated in an attempt to record the
Decedent stating she would leave Ryland in Decedent’s will as a beneficiary.
On April 15, 2022,
Ryland filed a Cross-Complaint against Claudia Neuman, Victoria Talbot Neuman
(collectively, the “Neumans”), and Roes 1 to 10, alleging that she had served
without pay as a caregiver to Decedent for over four years based on an
agreement that the Decedent would provide for Ryland in Decedent’s will. The Cross-Complaint alleges causes of action
for (1) Services Rendered; (2) Intentional Infliction of Emotional Distress;
and (3) Negligent Infliction of Emotional Distress.
On June 15, 2022, the
Neumans filed a motion to strike the request for attorneys’ fees in Ryland’s
Cross-Complaint because Ryland did not plead a contractual or statutory basis
for the recovery of attorneys’ fees. On October 25, 2022, the court granted the
motion to strike attorneys’ fees without leave to amend.
On December 21, 2022,
Ryland filed the present Motion for Leave to File a First Amended
Cross-Complaint. Ryland seeks to add six new causes of action, which are:
(i)
C/A 2: Violation of Labor Code §§510 and 1198
(Unpaid Overtime);
(ii)
C/A 3: Violation of Labor Code §§1194, 1197 and
1197.1 (Unpaid Wages);
(iii)
C/A 4: Violation of Labor Code §§201, 202 and
203 (Final Wages Not Timely Paid);
(iv)
C/A 5: Violation of Labor Code §§204 and 210
(Wages Not Timely Paid During Employment);
(v)
C/A 6: Violation of Labor Code §226(a) (Failure
to Provide Accurate Wage Statements);
(vi)
C/A 7: Violation of Business & Professions
Code §17200, et seq.
On January 5, 2023,
the Neumans filed an opposition, arguing that Ryland is attempting to
circumvent the court’s ruling granting the Neumans’ motion to strike attorneys’
fees by now alleging causes of action that authorize an award of attorneys’
fees.
On January 11, 2023,
Ryland filed a reply, disputing the argument that her motion for leave to amend
is a motion for reconsideration. Ryland further argues that the Neumans fail to
establish any bad faith on the part of Ryland in seeking to amend the
cross-complaint or that the Neumans would be prejudiced by the proposed
amendments.
II.
Analysis
Code of Civil
Procedure section 473, subdivision (a)(1) provides that the court “may, in
furtherance of justice, and on any terms as may be proper, allow a party to
amend any pleading.” Case law makes clear that the court is rarely justified in
denying leave to amend. (See Morgan v. Superior Court (1959) 172
Cal.App.2d 527, 530.) “Although courts are bound to apply a policy of great
liberality in permitting amendments to the complaint at any stage of the
proceedings, up to and including trial [citations], this policy should be
applied only ‘where no prejudice is shown to the adverse party
…. [Citation.] A different result is indicated ‘where inexcusable delay
and probable prejudice to the opposing party’ is shown. [Citation].” (Magpali
v. Farmers Group (1996) 48 Cal.App.4th 471, 487.) Where a proposed
amendment opening an entirely new substantive area of injury on the eve of
trial without any explanation for why the major change had not been made long
before, denial of leave is appropriately ordered in the court’s discretion. (Ibid.;
see also, e.g., Green v. Rancho Santa Margarita Mortgage Co. (1994)
28 Cal.App.4th 686, 692 [“There is a platoon of authority to the effect
that a long unexcused delay is sufficient to uphold a trial judge’s decision to
deny the opportunity to amend pleadings, particularly where the new amendment
would interject a new issue which requires further discovery.”].) But a
change in legal theory is not prejudicial where the gravamen remains the same.
(Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 489 [finding
plaintiff’s new legal theory irrelevant to whether amendment is prejudicial
because “the test is whether the two pleadings relate to the same general set
of facts.”].)
Under California
Rules of Court, 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. Under California Rule of
Court Rule 3.1324, subdivision (b), 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.
The Neumans contend
the basis for Ryland’s motion—discovery of a new legal theory after the court
granted the Neumans’ motion to strike attorneys’ fees—is analogous to a motion
for reconsideration under Code of Civil Procedure section 1008. This contention
lacks merit. Ryland seeks to amend the pleadings with new causes of action that
authorize an award of attorneys’ fees should she prevail on the merits. Ryland
does not seek reconsideration of this court’s ruling striking attorneys’ fees
for causes of action that did not provide a contractual or statutory basis for
an attorneys’ fees award.
The Neumans also cite Hulsey
v. Koehler (1990) 218 Cal.App.3d 1150 (Hulsey) for the proposition
that courts are more critical of proposed amendments when offered after long
unexplained delay, on the eve of trial, where there is a lack of diligence, or
there is prejudice to the other party. However, by the Neumans’ own admission, Hulsey
is not on point. Hulsey had to do with proposed amendments to
answers near the eve of trial. No such analogous circumstance is present here.
Given the liberal
policy of granting leave to amend and allowing the parties to proceed on the
merits of claims, the court grants the motion. Contrary to the Neumans’
contention, Ryland has not unduly delayed in filing this motion, nor have the
Neumans offered sufficient evidence to establish that the Neumans will be
severely prejudiced by allowing the amendment. Trial is set for May 30, 2023,
over four months away. The discovery cut-off has not passed nor have the
deadlines to file motions for summary judgment/summary adjudication. The
Neumans have sufficient time to conduct discovery on Ryland’s new claims.
Further, the court
finds that Ryland including a redlined version of the proposed First Amended
Cross-Complaint (“FACC”) substantially complies with the rules of court in
identifying for the court “where, by page, paragraph, and line number, the
additional allegations are located.” (Cal. Rules of Court, rule 3.1324, subd.
(a)(3).) Allowing Ryland to file the proposed FACC would be in furtherance of
justice and would not prejudice the Neumans. Accordingly, the motion is
granted. Ryland is ordered to file the clean version (Ex. 1 of the motion)
within five court days.
III.
Disposition
For the foregoing reasons, the Motion for
Leave to File the First Amended Cross-Complaint is granted.
Moving party is ordered to file and serve
the First Amended Cross-Complaint within five (5) days.