2012-00135467-CU-PO

Barbara Lovenstein vs. Eskaton Fountainwood Lodge

Nature of Proceeding: Motion to File 2nd Amended Complaint

Filed By: Renneisen, Jay P.

Plaintiffs’ Barbara Lovenstein, et al.’s motion for leave to file a second amended complaint is granted.

In this elder abuse action Plaintiffs seek leave to file a second amended complaint to refine and add to the derivative liability/agency allegations against the various corporate defendants in this action. The Court notes that this action was on appeal from September 2013 when Defendants appealed the Court’s order denying their petition to compel until March 15, 2018 when the Third District Court issued the remittitur. No trial date is set.

“It is the general policy that courts should exercise liberality in permitting the filing of supplemental pleadings when the alleged ‘occurring-after’ facts are pertinent to the case.” (Flood v. Simpson (1975) 45 Cal.App.3d 644, 647.) “Trial courts are vested with the discretion to allow amendments in the furtherance of justice… That Trial courts are to liberally permit such amendments, at any stage of the proceeding, has been established policy in this state…resting on the fundamental policy that cases should be decided on the merits.” (Hirsa v Superior Court (1981) 118 Cal.App.3d 486, 488-489.) Judicial policy favors resolution of all disputed matters between the parties in the same lawsuit. Thus, the court’s discretion will usually be exercised liberally to permit amendment of the pleadings. See Nestle v. Santa Monica (1972) 6 Cal.3d 920,939; Mabie v. Hyatt (1998) 61 Cal. App.4th 581, 596. A trial court has discretion to deny a motion for leave to amend where both “inexcusable delay and probable prejudice” is shown. (Magpali v. Farmers Group (1998) 48 Cal.App.4th 471, 487-488 [leave to amend made on the eve of trial properly denied in the trial court’s discretion

where the new cause of action would have greatly expanded the case after the “trial date was set, the jury [was] about to be impaneled, counsel, the parties, the trial court, and the witnesses [had] blocked the time, and the only way to avoid prejudice to the opposing party is to continue the trial date to allow further discovery…”].)

Defendants filed essentially a one page opposition arguing that Plaintiffs fail to explain whether the proposed allegations are new facts developed since the complaint was filed or facts that existed at the time they filed the complaint of which they were unaware. Defendants argue that if the facts are ones that have developed since the complaint was filed Plaintiffs should file a supplemental complaint. Plaintiffs’ counsel’s declaration indicates that counsel discovered the need to refine and add the derivative liability allegations while reviewing the complaint while the matter was on appeal. He also indicates that he did not move to amend earlier because the case was on appeal. (Renneisen Decl. ¶¶ 11-13.) Counsel’s explanation is sufficient to indicate that the facts are not new facts that have developed since the complaint was filed but rather facts that have existed but which were not in the original complaint.

Defendants next argue that Plaintiffs fail to explain what new facts they have discovered and that the proposed new allegations are familiar to Plaintiffs’ counsel as they are simply boilerplate allegations that are in every complaint filed by Plaintiffs’ counsel. The Court will not deny the motion on this basis. As discussed in the previous paragraph, Plaintiffs’ counsel provided a sufficient explanation for the need for the amendment. Plaintiffs do not, as Defendants argue, need to provide evidence of any new facts they discovered to support the amendment. The amendment was prompted by a review of the complaint while the case was on appeal and Plaintiffs’ counsel’s view that the complaint did not adequately set forth the derivative liability theories. Whether or not Plaintiffs can prove the theories of derivative liability is not relevant on this motion.

The motion is granted.

Plaintiffs shall file and serve the proposed first amended complaint attached as Exhibit B to Plaintiffs’ counsel’s declaration no later than July 5, 2018. The Court will not deem the proposed pleading filed and served.