Judge Thomas Anderle
Department 3 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
Joi Stephens, et al. v. Reicker, Pfau, Pyle McRoy, LLP, et al.
Case No: 18CV02165
Hearing Date: Tue May 07, 2019 9:30

Nature of Proceedings: Demurrers/Motions Strike Fourth Amended Complaint, Third Amended Complaint

Motion to Strike Third Amended Complaint; Demurrer to Third Amended Complaint; Motion to Strike Fourth Amended Complaint; Demurrer to Fourth Amended Complaint

Attorneys:

For Plaintiff: John B. Richards

For Defendant: Heather L. Rosing (Klinedinst PC – San Diego)

Ruling: The Court grants the motions of defendants Reicker, Pfau, Pyle & McRoy, LLP, Bruce McRoy, and Peter Muzinich to strike the third and fourth amended complaints filed by plaintiffs Joi Stephens, John Stephens, Ryan Chacon, and Alexandra Djordjevic. The operative complaint is the second amended complaint. Defendants shall file and serve responsive pleadings to the second amended complaint on or before June 6, 2019. If Mr. Richards wants to amend before the inevitable demurrer to the second amended complaint, he can get defendants to stipulate or file a motion. As set out below the Court will not simply ignore the rules of procedure. NOTE: This case is also on the Case Management Calendar (“CMC”); you do not need to appear at 8:30am; I will call the CMC on this case at 9:30am so you need to appear only once and at that time.

Background

On April 27, 2018, plaintiffs Joi Stephens, John Stephens, Ryan Chacon, and Alexandra Djordjevic filed a complaint against defendants Reicker, Pfau, Pyle & McRoy, LLP, Bruce McRoy, Peter Muzinich, and Patty Valladares for 1) elder abuse, 2) legal malpractice, 3) breach of fiduciary duty, 4) intentional infliction of emotional distress, 5) negligent misrepresentation, 6) intentional misrepresentation, 7) conversion, and 8) accounting. On November 2, 2018, plaintiffs filed a first amended complaint, dropping Vallardes as a defendant and dropping the misrepresentation causes of action.

On January 24, 2019, pursuant to a stipulation and order, plaintiffs filed a second amended complaint dropping the intentional infliction of emotional distress cause of action. Six days later, without a stipulation or leave of court, plaintiffs’ counsel filed a third amended complaint. On March 5, again without a stipulation or leave of court, plaintiffs’ counsel filed a fourth amended complaint.

Motions to Strike Third and Fourth Amended Complaints

Defendants move to strike the third and fourth amended complaints. The first ground in each of these motions is that plaintiffs’ counsel filed them without leave.

“A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed….” CCP § 472(a). Plaintiffs exhausted their option to file an amended complaint without leave of court when they filed the first amended complaint, something they appear to have acknowledged by obtaining a stipulation to file a second amended complaint.

The court may, in its discretion, allow a subsequent amended pleading after notice to the adverse party. CCP § 473(a)(1). A motion to amend a pleading must comply with CRC 3.1324.

Plaintiffs did not seek leave of court to file the third and fourth amended complaints. They argue now the liberality in permitting amended complaints. It is true that courts exercise their discretion to allow amendments liberally. Nestle v. Santa Monica, 6 Cal.3d 920, 939 (1972). But that liberality does not dispense with procedure. There are reasons for rules of procedure. The Court and counsel are not free to ignore them.

The Court grants the motions of defendants Reicker, Pfau, Pyle & McRoy, LLP, Bruce McRoy, and Peter Muzinich to strike the third and fourth amended complaints filed by plaintiffs Joi Stephens, John Stephens, Ryan Chacon, and Alexandra Djordjevic. The operative complaint is the second amended complaint. Defendants shall file and serve responsive pleadings to the second amended complaint on or before June 6, 2019.