Judge William D. Claster, Case 20-01166993 2023-01-06 Tentative Ruling

Judge: William D. Claster, Case: 20-01166993, Date: 2023-01-06 Tentative Ruling

Plaintiff Christienne M. Black's Notice of Motion; Points & Authorities and Declaration of Christopher W. Bavuk I Support of Motion Seeking Leave to File Second Amended Complaint ROA 304

Plaintiff Christienne M. Black’s (“Mother”) motion for leave to file a second amended complaint (2AC) is GRANTED. Mother is ordered to file and serve the proposed 2AC (Bayuk Decl., Ex. A) by January 13, 2023.

I. Standard of Review

A court “may, in the furtherance of justice . . . allow a party to amend any pleading.” (CCP § 473(a)(1).) “[C]ourts 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.” (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487.) But the policy of liberality does not apply “[w]here inexcusable delay and probable prejudice to the opposing party is shown.” (Estate of Murphy (1978) 82 Cal.App.3d 304, 311.) Leave to amend may be denied where amendment would be futile (see Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 230), but “the preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.)

II. Discussion

Defendant Brian Baron has not filed an opposition to the present motion, so the Court will consider only the arguments raised by defendant Carolyn Cater Nishimoto. Nishimoto was a court-appointed custody evaluator in the underlying divorce action.

In April 2021, the Court granted an anti-SLAPP motion filed by the Galindo defendants, therapists retained for Mother’s minor children at Nishimoto’s recommendation. Nishimoto filed only a demurrer to the first amended complaint, not an anti-SLAPP motion. She relied in large part on the litigation privilege, arguing the claims against her were based on communications made in the course of her court-appointed role. In May 2021, the Court sustained Nishimoto’s demurrer entirely, but granted leave to amend as to most causes of action.

Shortly thereafter, Mother noticed an appeal of the anti-SLAPP ruling. She also applied ex parte for a stay of the entire case pending the outcome of her appeal. The Court granted the application and stayed the case on June 3, 2021. (ROA 238.) The Court of Appeal affirmed the anti-SLAPP ruling, and the remittitur issued on September 6, 2022. (ROA 272.) At a status conference in October 2022, Mother indicated she would seek to add a new cause of action to her yet-to-be-filed 2AC. The Court ordered her to file either a stipulation or a motion by November 30, 2022. (ROA 295.)

As regards Nishimoto, the proposed 2AC abandons all causes of action from the FAC and replaces them with a single cause of action for violation of 42 U.S.C. § 1983. Nishimoto objects to this proposed amendment as unjustifiably delayed.

The Court disagrees for two reasons. First, the Court questions whether there is any meaningful delay, and if so, whether that delay is unjustified. Again, the case was stayed from June 2021 to September 2022 while the anti-SLAPP appeal was pending. Mother could not have moved for leave to file a 2AC during this time. Once the stay was lifted, Mother filed this motion by the Court-ordered deadline.

Second, even if there is delay, leave to amend is properly denied only “[w]here inexcusable delay and probable prejudice to the opposing party is shown.” (Estate of Murphy, supra, 82 Cal.App.3d at p. 311 [emphasis added].) Nishomoto’s claimed prejudice is difficult to discern from her moving papers. She claims she would “hav[e] to undertake a new litigation strategy to address a new cause of action and the damages associate[d] with the same” (Opp. at p. 2), and that she “has substantially relied on the status of this case, and the status of the causes of action plead against her” in assessing her potential exposure to damages. (Opp. at p. 7.) The opposition contains no further discussion of prejudice.

That said, the opposition does complain that Mother is “attempting to circumvent the litigation privilege by asserting a § 1983 claim.” (Opp. at p. 6.) As the Court of Appeal noted when affirming the anti-SLAPP order, the litigation privilege does not apply to claims under § 1983. It appears Nishimoto’s real complaint is that she will be forced to defend against a cause of action not barred by the litigation privilege (unlike the claims in the FAC). If Nishimoto means that amending a complaint to avoid a flaw identified in prior pleadings is prejudicial, she cites no authority so holding. In any event, at this relatively early stage of proceedings, there is more than enough time for her to take whatever discovery is necessary to defend against a § 1983 claim.

For these reasons, the motion for leave to amend is granted.