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in San Diego County
Ruling
WESCO INSURANCE COMPANY, A CORPORATION VS EDGAR CISNEROS, AN INDIVIDUAL
Jul 24, 2024 |
23PSCV03961
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.
Ruling
David White vs. John Manoogian
Jul 22, 2024 |
C24-00396
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.
Ruling
Ryan Cardenas vs Warren Campbell, et al.
Jul 29, 2024 |
22CV-03955
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.
Ruling
Vionalyn Caguin and Renato Caguin, individually and as successors-in-interest to the Estate of Maria "Therese" Caguin vs. Vallejo City Unified School District
Jul 24, 2024 |
CU23-02784
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.
Ruling
KOBRYN, et al. vs FITZPATRICK
Jul 25, 2024 |
Civil Unlimited (Motor Vehicle - Personal Inju...) |
23CV035618
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.
Ruling
MERCURY INSURANCE COMPANY vs BORROUGHS
Jul 23, 2024 |
CVSW2304205
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.