Girvin Vs Whiteside

Case Number: 23PSCV03961 Hearing Date: July 24, 2024 Dept: K Plaintiff Wesco Insurance Companys Motion for Leave to File Second Amended Complaint is GRANTED. Background Plaintiff Wesco Insurance Company (Plaintiff) seeks subrogation for a September 25, 2022 motor vehicle accident. On March 1, 2024, Edgar Cisneros (Defendant) default was entered on the complaint. On May 29, 2024, Plaintiff filed a First Amended Complaint (FAC), asserting a cause of action against Defendant and Does 1-10 for: 1. Subrogation On June 27, 2024, the court denied Plaintiffs Ex Parte Application for Leave to File a Second Amended Complaint. A Case Management Conference is set for August 14, 2024. Legal Standard The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading& (Code Civ. Proc., § 473, subd. (a)(1); and see § 576 [Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order].) [T]he trial court has wide discretion in allowing the amendment of any pleading. ( Bedolla v. Logan & Frazer (1975) 52 Cal.App.3d 118, 135.) [I]t is irrelevant that new legal theories are introduced as long as the proposed amendments relate to the same general set of facts. ( Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048 [quotation marks and citation omitted].) [E]ven if the proposed legal theory is a novel one, 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. ( Id. [quotation marks and citation omitted].) With that said, the failure of a proposed amendment to state facts sufficient to constitute a cause of action or defense may support an order denying a motion to amend. ( California Casualty Gen. Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 280, disapproved of on other grounds in Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4 th 390) Courts must apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial, when no prejudice is shown to the adverse party. ( Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) However, even if a good amendment is proposed in proper form, unwarranted delay in presenting it mayof itselfbe a valid reason for denial. . . denial may rest upon the element of lack of diligence in offering the amendment after knowledge of the facts, or the effect of the delay on the adverse party. ( Roemer v. Retail Credit Co. (1975) 44 Cal.App.3d 926, 940.) 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. (Cal. Rules of Court, rule 3.1324(a).) Additionally, [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. (Cal. Rules of Court, rule 3.1324(b).) Discussion Plaintiff moves the court, per Code of Civil Procedure § 473, for leave to file its proposed Second Amended Complaint (SAC). Plaintiff represents that the proposed SAC is necessitated based on an error contained in the First Amended Complaint with respect to PLAINTIFFS alleged damages. (Motion, 1:27-28). The motion is unopposed. Defendants default was previously entered as to Plaintiffs complaint. Court records reflect that Defendant was substitute served with Plaintiffs FAC on June 7, 2024 (completed June 17, 2024). Defendant has not appeared, to date (i.e., as of July 17, 2024, 3:45 p.m.). Plaintiffs counsel Michael Daniels (Daniels) attests that he has made multiple attempts to contact Defendant telephonically to obtain his consent to the filing of the proposed SAC, without success. (Daniels Decl., ¶ 3). The motion is granted. The proposed SAC is deemed filed as of this date.

C24-00396 CASE NAME: DAVID WHITE VS. JOHN MANOOGIAN *HEARING ON MOTION IN RE: TO FILE UNDER SEAL DOCUMENTS ISO DAVID WHITE'S COMPLAINT FILED BY: WHITE, DAVID *TENTATIVE RULING:* Plaintiff’s unopposed motion to file under seal Exhibit A to the Complaint is granted for the reasons stated in the motion.

22CV-03955 Ryan Cardenas v. Warren Campbell, et al. Default Prove-Up Appearance required on all matters. Remote appearances are permitted. Parties who wish to appear remotely must contact the clerk of the court at (209) 725-4111 to arrange for a remote appearance.

S-CV-0049197 The People of the State of California, Department of Transportation vs. Shepherd, Robert et al ** NOTE: telephonic appearances are strongly encouraged Appearance required.

CU23-02784 Plaintiffs’ Motion for Leave to File Second Amended Complaint TENTATIVE RULING Plaintiffs VIONALYN CAGUIN and RENATO CAGUIN move for leave to file a second amended complaint against Defendant VALLEJO CITY UNIFIED SCHOOL DISTRICT. Plaintiffs’ operative first amended complaint alleges vicarious liability for employee negligence, breach of mandatory duty to supervise students, and a survival action. The core of the factual allegations is that Defendant failed to respond to bullying against and expressed suicidal ideation from Plaintiffs’ daughter Therese (“Decedent”), a student at Defendant’s Hogan Middle School, resulting in her suicide. Plaintiffs seek to add expanded allegations of the bullying Decedent experienced, Decedent’s contact with Defendant’s personnel, and Defendant’s access to but failure to utilize qualified mental health professionals to intervene in Decedent’s case. Plaintiffs also seek to add a new cause of action for negligent hiring, supervision, and/or retention pertaining to Defendant’s allegedly unqualified “Mental Health Support Provider” William Dickens. Defendant’s summary judgment motion in this case, filed before Plaintiffs’ motion for leave, is presently set for hearing August 9, 2024. Legal Standard: Amended Pleadings. The trial court may, in its discretion, allow amendments to pleadings “in furtherance of justice.” (Code Civ. Proc., § 473, subd. (a)(1).) The court has wide discretion here but repeatedly stated policy encourages liberality in allowing amendment. (See Frost v. Witter (1901) 132 Cal. 421, 424; Cardenas v. Ellston (1968) 259 Cal.App.2d 232; Kolani v. Gluska (1998) 64 Cal.App.4th 402, 412.) Indeed, if the motion to amend is timely made and granting the motion will not prejudice the opposing party, it is error to refuse permission to amend where the refusal also results in a party being denied the right to assert a meritorious action or defense. (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.) Leave to amend generally should be granted at any time, up to and including the midst of trial, so long as there is no prejudice to the opposing party. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) Leave to amend may be granted in the face of a pending summary judgment motion so long as the plaintiff can display that he was not aware of key facts earlier and is not using the amendment solely to defeat the summary judgment motion and create a “moving target” unbounded by the pleadings. (Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1280.) Plaintiffs declare that they did not know about Mr. Dickens’ involvement in the case or alleged incompetence for his job until their second set of discovery requests was answered and related depositions were conducted, all after Defendant filed the summary judgment motion. (Declaration of Priscilla M. Parker in Support of Motion at ¶¶ 7-12.) Their motion for leave was filed a week after depositions of Defendant’s employees concluded. (Id. at ¶ 12.) Defendant does not present contrary evidence on this point. Plaintiffs adequately demonstrate that they sought leave to amend to add their new cause of action for negligent hiring, supervision, and/or retention as soon as able. Defendant presents evidence that Plaintiffs had information about Decedent’s email contact with its personnel in August 2023. (Declaration of Andrew C. Hubert in Support of Opposition to Motion for Leave to Amend (Hubert) at ¶ 2, Exhibit A.) However, addition of the expanded allegations concerning Decedent’s contact with Defendant now will cause only de minimis prejudice. The first amended complaint made it clear to Defendant that Plaintiffs alleged email contact between Decedent and her teacher. (1AC at ¶ 14.) Plaintiffs alleged a lack of meaningful response to the warning signs Decedent gave. (Id. at ¶ 15.) The new email allegations increase the detail presented but do not materially change the complaint in terms of informing Defendant of Plaintiffs’ accusations and the legal defense it will need to mount. Defendant also presents evidence of an incident report produced to Plaintiffs in November 2023. The author of the report states that he or she spoke to VIONALYN about Decedent and a September 23, 2022 bullying altercation. (Hubert at ¶ 3, Exhibit B.) The author told VIONALYN that “support staff” would talk to Decedent. (Ibid.) The author encouraged VIONALYN to get Decedent to a mental health care professional. (Ibid.) The author states at the end that a referral was made for Decedent to speak to William Dickens. (Ibid.) This report did not tell Plaintiffs that Defendant had access to qualified professionals. Nor did it tell Plaintiffs that Defendant did not utilize qualified professionals for Decedent’s benefit at any point between September 2022 and Decedent’s death in January 2023. It only told Plaintiffs that Defendant planned to use “support staff.” The statement about the referral to Mr. Dickens at the end appears to be separate from what was told to VIONALYN. Defendant does not effectively contest Plaintiffs’ claim that they only learned about its access to but failure to utilize qualified mental health professionals after the summary judgment motion was filed. Plaintiffs adequately demonstrate why they did not seek leave sooner, showing that their request for leave to amend is made in good faith in light of the pending summary judgment motion. Prejudice to Defendant will be de minimis in this situation. Conclusion. Plaintiffs’ motion for leave to amend is granted.

23CV035618: KOBRYN, et al. vs FITZPATRICK 07/25/2024 Hearing on Motion to Quash Service of Summons and Complaint; filed by Shelley Dawn Fitzpatrick (Defendant) in Department 20 Tentative Ruling - 07/22/2024 Karin Schwartz The Motion to Quash NOTICE OF MOTION AND MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATIONS OF ALI HASHEMI, ESQ. AND SHELLEY DAWN FITZPATRICK IN SUPPORT THEREOF; filed by Shelley Dawn Fitzpatrick on 05/29/2024 is Granted. Specially Appearing Defendant Shelley Dawn Fitzpatrick's motion to quash service of the summons and complaint is GRANTED due to Plaintiff’s failure to properly serve Defendant. Although a motion to quash is brought by a defendant, "the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service." (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.) A proof of service that complies with statutory standards creates a rebuttable presumption that service was proper. (See Dill v. Berquist Const. Co., Inc. (1994) 24 Cal.App.4th 1426, 1441-1442.) Defendant moves to quash service of summons on the grounds that she was not served with the operative complaint. On 4/2/24, Plaintiff filed a proof of service reflecting service of the summons and complaint on Defendant by substituted service on a "Jane Doe" at 6665 Tralee Village Drive, Dublin, CA 94568. However, Defendant has filed a sworn declaration asserting that she has not "resided, abided, conducted business, or used as a mailing address" the 6665 Tralee Village Drive address since 5/25/23. (Fitzpatrick Decl., para. 2.) Defendant also states that "Jane Doe" is not a member of her household. (Fitzpatrick Decl., para. 3.) Defendant's declaration is adequate to rebut the presumption that service was proper. The Court declines to consider the hearsay in the unauthenticated police report attached to Plaintiff's opposition.

MERCURY INSURANCE MOTION TO SET ASIDE DEFAULT AND CVSW2304205 COMPANY VS BORROUGHS DEFAULT JUDGMENT Tentative Ruling: The Motion is unopposed. The Motion is Granted. CCP § 473(b) provides a moving party discretionary relief when the moving party has demonstrated mistake, inadvertence, surprise, or excusable neglect. Here the moving party was working with his insurance company and an adjuster. The Attorney Declaration further indicates that an attorney would have been assigned to the Defendant had the attorney/insurance company been aware that a lawsuit had been filed. The Court notes a proposed answer was properly attached to this motion. Defendant to file an Answer within 5 days of this court’s ruling.

Matter on the Law & Motion calendar for Friday, July 26, 2024, Line 11. 1 - DEFENDANT COSTCO WHOLESALE CORPORATION's DEMURRER to Amended COMPLAINT. Continued to August 8, 2024, on the court's motion. =(302/RCE)