Judge: Virginia Keeny, Case: 19STCV11331, Date: 2022-09-12 Tentative Ruling
Case Number: 19STCV11331 Hearing Date: September 12, 2022 Dept: W
george
lacayo V. ironwood velvet, llc, ET AL.
motion for
leave to file second amended complaint
Date of
Hearing: September 12, 2022 Trial
Date: September 26, 2022
Department: W Case
No.: 19STCV11331
Moving Party: Plaintiff George Lacayo
Responding Parties: Defendants
Ironwood Velvet, LLC dba Ironwood Management,
and
13343 Associates, LP (Doe 1)
BACKGROUND
This
action arises out of a trip and fall in Plaintiff’s apartment which is owned, leased,
and managed by Defendants Villa Vanowen, Crown Vanowen Villa, LLC, and Ironwood
Velvet, LLC dba Ironwood Management. Plaintiff alleges he suffered from a trip
and fall accident inside his apartment due to torn carpet. Plaintiff further
alleges he had previously reported and complained to Defendants in regard to
the torn and damaged carpeting in his unit. After several requests for repairs,
Plaintiff alleges defendants agreed to make the requested repairs in September
2017. However, defendants failed to make such repairs and on December 23, 2017,
Plaintiff tripped and fell causing Plaintiff injury. Plaintiff has also named
Defendant R&J Janitorial, Inc. as a defendant.
On
March 13, 2020, Plaintiff George filed a First Amended Complaint (“FAC”) asserting
causes of action for: 1) General Negligence/Premises Liability; 2) Breach of
Implied Warranty of Habitability; 3) Negligent Maintenance of Premises; and 4)
Nuisance.
On
October 21, 2020, Plaintiff amended the FAC to substitute 13343 Associates, LP
for the defendant sued fictitiously as Doe 1.
On August 31,
2022, Plaintiff filed an Ex Parte Application for Leave to File Plaintiff’s 2nd
Amended Complaint to Include Claim for Punitive Damages.
On September
1, 2022, the court held a hearing and denied the ex parte application, but set
the matter for further hearing on shortened notice on September 12. The court ordered that it would deem the ex
parte application as the moving papers for a Motion for Leave to File a Second
Amended Complaint. The court further ordered any opposition to the motion to be
filed by September 7, and reply filed by September 9, 2022.
On
September 7, 2022, Defendants 1334 Associates, LP, and Ironwood Velvet, LLC dba
Ironwood Management (collectively, “Defendants”) filed their opposition to the
motion.
[Tentative]
Ruling
Plaintiff
George Lacayo’s Motion for Leave to File Second Amended Complaint to Include a
Claim for Punitive Damages is DENIED.
LEGAL STANDARD
Code of Civil
Procedure section 473(a)(1) provides, in relevant part: “[t]he court may . . .
in its discretion, after notice to the adverse party, allow, upon any terms as
may be just, an amendment to any pleading . . . .” The court may, in
furtherance of justice, allow the amendment of any pleading at any time before
or after commencement of trial. (Code Civ. Proc., § 576.)
“[T]he
court’s discretion will usually be exercised liberally to permit amendment of
the pleadings. The policy favoring amendment is so strong that it is a rare
case in which denial of leave to amend can be justified.” (Howard v. County
of San Diego (2010) 184 Cal.App.4th 1422, 1428 [internal citations omitted].)
“If the motion to amend is timely made and the granting of the motion will not
prejudice the opposing party, it is error to refuse permission to amend . . .
.” (Morgan v. Sup. Ct. (1959) 172 Cal.App.2d 527, 530.) Prejudice
includes “delay in trial, loss of critical evidence, or added costs of preparation.”
(Solit v. Tokai Bank, Ltd. New York Branch (1999) 68 Cal.App.4th 1435,
1448.)
California
Rules of Court, rule 3.1321(a) requires that a motion to amend must: “[i]nclude
a copy of the proposed. . . amended
pleading. . . [and] state what allegations in the previous pleading are
proposed to be [deleted and/or added], if any, and where, by page, paragraph,
and line number, the [deleted and/or additional] allegations are located . . .
.”
In addition, Rule
3.1324(b) states: “[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.”
ANALYSIS
Plaintiff
George Lacayo moves to file a second amended complaint to include a claim for
punitive damages.
The original
complaint contained a claim for punitive damages. (Ex Parte Application, filed
August 31, 2022 (“Motion”), declaration of Sandeep G. Agarwal (“Agarwal
Decl.”), ¶ 2.) The court granted the Defendants’ motion to strike the claim on
July 14, 2020. (Agarwal Decl., ¶ 2; Exh. B – a copy of the July 14 Minute
Order.) Plaintiff contends that during
the course of discovery, he took several depositions which revealed that a
claim for punitive damages was valid. (Agarwal Decl., ¶ 2.) Specifically, Defendants
had claimed, under oath, that the carpeting in Plaintiff’s apartment had
been repaired prior to Plaintiff’s trip and fall incident on December 23,
2017. (Motion, pp. 11:1-3, 12:1-6;
Agarwal Decl., ¶ 2.) However, during the deposition of the owner of R&J
Janitorial (a third-party vendor), the owner testified that the carpeting was
fixed after the incident on December 23, 2017, and that on December 20,
2017, he only provided an estimate for the work. (Motion, p. 12:6-10; Agarwal
Decl., ¶ 2.) Therefore, a claim for punitive damages is now warranted for two
reasons. First, Defendants were on notice of the torn carpeting from Plaintiff
and Los Angeles Housing Authority. (Motion, p. 12:15-16; Agarwal Decl., ¶ 2.)
However, despite knowing that the torn carpet was a tripping hazard, Defendants
did not bother fixing the carpet for nearly four months in conscious disregard
of Plaintiff’s rights. (Motion, p. 12:16-20.) Second, the Defendants had
fraudulently claimed in their deposition that the carpet was fixed prior to the
accident, even though the person who actually fixed the carpeting confirmed
that they fixed it after the incident, in order to deprive Plaintiff of his
legal rights. (Motion, p. 12:21-26.) For those reasons, the court should grant
Plaintiff’s request for leave to add a claim for punitive damages.
The proposed
Second Amended Complaint is attached to Plaintiff’s motion as Exhibit A.
In
opposition, Defendants argue the following (among other things).
Defendants
had a good faith belief that the carpet at issue was repaired on December 20,
2017, based on the invoice Defendants received from R&J Janitorial Inc.
(Opposition, declaration of David W. Tetzlaff (“Tetzlaff Decl.”), ¶ 4; Exh. B –
a copy of the invoice.) Indeed, that invoice led to the Defendants filing a
cross-complaint against Rafael Castanon, dba R&B Janitorial on November 19,
2020, and deposing him on June 28, 2021. (Tetzlaff Decl., ¶¶ 4, 5.) Upon
learning that the invoice did not represent the date the work was done, the
Defendants dismissed their cross-complaint against R&J Janitorial on
September 15, 2021. (Opposition, p. 3:18-19.)
Plaintiff
argues that “the ramifications for the apartment complex for not complying with
failed inspections from the City of Los Angeles Housing Authority have now
been learned.” (Opposition, p. 3:24-26.) However, the letter from the
Housing Authority regarding the failed inspections was attached as an Exhibit
to the deposition of Scott Williams taken on February 20, 2020, and, therefore,
Plaintiff knew about the failed inspection no later than February 20, 2020.
(Opposition, pp. 3:26-4:6.) Yet, Plaintiff waited until now, 12 days before
trial to seek leave to amend the FAC. (Opposition, 4:6-7.)
Allowing
Plaintiff to amend the FAC to re-introduce his punitive damages claim would
result in extreme prejudice to the Defendants for the following reasons. First,
Plaintiff never indicated that he intended to re-introduce his claim for
punitive damages even though Plaintiff was well aware that California law prohibits
Defendants from seeking indemnity under their liability insurance for punitive
damages should such damages be imposed. (Opposition, pp. 4:26-18.) Second,
Plaintiff’s delay in seeking leave to amend his FAC is unwarranted. (Opposition,
p. 5:25-27.)
Finally, defendants
argue there is no basis for imposition of punitive damages in the present
action where simple negligence is alleged. The proposed Second Amended
Complaint includes new allegations in Paragraphs 24, 25, and 26, that attempt
to justify a basis for punitive damages under Civil Code section 3294.
(Opposition, p. 6:4-7.) Specifically, Plaintiff now alleges mere conclusions of
fraud by Defendant’s PMK concerning his understanding of the invoice from
R&J Janitorial. (Opposition, p. 6:7-9.) However, the gravamen of
Plaintiff’s action continues to be nothing more than mere negligence at best
wherein Plaintiff claims he tripped and fell in his apartment. (Opposition, p.
6:9-12.) In addition, under Civil Code section 3294, a corporate employer shall
not be liable for punitive damages based upon acts of an employee unless its
officer, director, or managing agent of the corporation, (1) had advance
knowledge of the unfitness of the employee and employed him or her with a conscious
disregard of the rights or safety of others, (2) authorized or ratified
the wrongful conduct for which the damages are awarded, or (3) was personally
guilty of oppression, fraud, or malice. (Opposition, p. 6:18-26.) Here, there
are no facts showing that the Defendants’ employees were incompetent to address
the requested repairs. (Opposition, pp. 7:25-8:1.) Even R&J Janitorial did
not believe that the condition of the carpet was a safety trip hazard when it
saw the carpet’s condition a few days before the alleged fall on November 23,
2017. (Opposition, p. 8:1-3.) There also no facts showing any individual acts
by Defendants’ officer, director, or managing agent of the corporation that
would render them personally guilty of oppression, fraud, or malice.
(Opposition, p. 7:22-25.)
The court finds it
proper to deny the motion for the following reasons.
First, Plaintiff
unreasonably delayed in bringing the instant motion. Plaintiff’s moving papers
shows that the deposition of R&J Janitoriat’s Rafael Castanon took place on
June 28, 2021. (Motion, Tetzlaff Decl., ¶ 10; Exh. H, p. 1.) However, Plaintiff
waited until more than a year after that deposition and only a few days before
trial to bring this motion without explaining the delay.
Second, even
if the court were to allow the amendment, the proposed Second Amended Complaint
would not allege facts sufficient to support a claim for punitive damages.
Indeed, there
is only one difference between the allegations in the FAC (which the court
found insufficient to support punitive damages) and the proposed Second Amended
Complaint.
When the
court granted the Defendants’ motion to strike, it noted that the FAC alleges
that Defendants’ failure in repairing the carpet (despite being fully aware of
its condition from Plaintiff’s complaint and a letter from government housing
officials) was reckless and a deliberate disregard of a high probability that
an injury will result to Plaintiff. (Minute Order dated July 14, 2020, p. 5,
second full paragraph, citing FAC ¶¶ 24, 25, 29.)
The proposed
Second Amended Complaint makes the same allegations in Paragraphs 24, 25, and
27.
The only
difference is that the proposed pleading adds Paragraph 26, which alleges that
the Defendants committed fraud in testifying during this action that the
carpet was repaired prior to the incident even though they knew that was false.
(Motion, Exh. A – a copy of the Proposed Second Amended Complaint, ¶ 26.)
However, “[a]
‘supplemental’ pleading is used to allege facts occurring after the
original pleading was filed.
[Citation.] In contrast, the
additional allegations in an ‘amended’ pleading address matters that had
occurred before the original pleading was filed.” (Foster v. Sexton (2021) 61
Cal.App.5th 998, 1032 [emphasis added].)
Therefore, to
the extent that Plaintiff is basing his punitive damages claim on Defendants’
allegedly fraudulent testimony during this action, Plaintiff is using
the wrong device to seek an amendment of the FAC. Instead of seeking leave to
amend the FAC, Plaintiff should move for leave to file a supplemental pleading.
However, even
if Plaintiff sought to file a supplemental pleading, the proposed Second
Amended Complaint would not allege facts sufficient to support punitive damages
claim under Civil Code section 3294. First, there is no causation or connection
between Plaintiff’s injury and the Defendants’ alleged fraudulent testimony, which
occurred years after Plaintiff’s injury. Second, as Defendants point out, the
proposed pleading fails to allege facts showing that the Defendants’ officer,
director, or managing agent of the corporation, had advance knowledge of the
unfitness of the employee and employed him or her with a conscious
disregard of Plaintiff’s rights or safety or were personally guilty of
oppression, fraud, or malice. The proposed pleading also fails to allege facts
showing that the Defendants’ officer, director, or managing agent of the
corporation authorized or ratified the failure to repair the carpet. Moreover,
statements actually made during a court proceeding, including discovery
responses, are subject to the litigation privilege and cannot be the basis for
a claim for damages, including punitive damages. (Civil Code Section 47(b); see
Moore v. Conliffe (1994) 7 Cal.4th 634; Silberg v.
Anderson (1990) 50 Cal.3d 205.)
To summarize,
Plaintiff unreasonably delayed in filing his instant motion. In addition, the
court already ruled that the FAC as currently pleaded did not support a claim
for punitive damages. Therefore, since the proposed pleading alleges the same
facts as the FAC and the only new allegation (i.e., Defendants’ fraudulent
testimony in response to discovery concerning the date the repair was done)
fails to support a claim for punitive damages, there is no reason for the court
to allow leave to amend.
For those
reasons, Plaintiff’s motion is denied.
CONCLUSION
Plaintiff
George Lacayo’s Motion for Leave to File Second Amended Complaint to Include a
Claim for Punitive Damages is DENIED.