John Wampler v. Charles S. Crail Automobiles
Case No: 1439844
Hearing Date: Tue May 22, 2018 9:30

Nature of Proceedings: Motion Leave to File Amended Cross-Complaint

Motion for Leave to File Amended Cross-Complaint

Attorneys:

For Plaintiff and Cross-Defendant John Wampler: John H. Parke, James M. Sweeney, Christopher E. Hahn, Allen & Kimbell, LLP

For Defendants and Cross-Complainants Charles S, Crail and Charles S. Crail

Automobiles: Thomas J. Dowling, Christine W. Chambers, Caitlin R. Maurer, Hager & Dowling

Ruling:

The motion of cross-complainants Charles S. Crail and Charles S. Crail Automobiles for leave to file an amended cross-complaint is granted as qualified herein.

There are two issues of form that the Court has with the proposed amended cross-complaint. First, the amended cross-complaint as proposed does not state in its caption that it is the first amended cross-complaint rather than an original cross-complaint as required by Rules of Court, rule 3.1324(a)(1). The caption needs to be revised to state its status as a first amended cross-complaint. Second, the prayer in the proposed amended complaint includes an amount of punitive damages sought, in violation of Civil Code section 3295, subdivision (e) (“No claim for exemplary damages shall state an amount or amounts.”). The statement of specific amount of punitive damages claimed must be deleted. (The Court notes that there are alternative, procedurally appropriate ways of giving cross-defendant notice of the amount of punitive damages sought by the complaint.)

With these exceptions, the motion for leave to file a first amended cross-complaint will be granted. Cross-defendant John Wampler’s deadline for filing a response to the first amended cross-complaint will run from service of the first amended cross-complaint as provided by the Code of Civil Procedure.

Cross-complainants shall file and serve their first amended cross-complaint in the form set forth in exhibit A to the motion with the revisions required herein on or before June 6, 2018.

Background:

On January 30, 2014, plaintiff John Wampler filed his complaint for damages against defendants Charles S. Crail and Charles S. Crail Automobiles (collectively, Crail). On March 3, 2014, Wampler filed his first amended complaint (FAC) adding defendant Edla Enberg to the complaint.

On April 7, 2014, Enberg filed her answer to the FAC and Crail filed a demurrer to the FAC. Concurrently, Crail and Enberg filed a cross-complaint against Wampler asserting causes of action for breach of contract (contract 1), breach of the implied covenant of good faith and fair dealing (contract 1), breach of contract (contract 2), breach of the implied covenant of good faith and fair dealing (contract 2), fraud, intentional infliction of emotional distress, and defamation. On May 21, 2014, Wampler filed his second amended complaint (SAC). On June 25, 2014, Crail and Enberg filed their answer to the SAC.

On July 16, 2014, Wampler filed his answer to the cross-complaint.

On October 24, 2014, Crail and Enberg filed their motion for summary judgment on Wampler’s SAC. On January 6, 2015, the Court granted the motion for summary judgment as to Crail on the basis of the defense of settlement and release. Judgment was entered in favor of Crail on the SAC on January 28, 2015.

On March 28, 2016, Wampler filed a dismissal as to Enberg on the SAC. On July 27, 2016, Enberg filed a dismissal of her cross-complaint against Wampler.

Trial was set for July 25, 2017. On July 25, 2017, at the time of trial, the Court noted that counsel for Crail was present but Wampler was not. Counsel requested and the Court entered an order striking Wampler’s answer to the cross-complaint. A prove-up hearing was held on August 22, 2017.

On September 6, 2017, the Court entered its written order, dated September 3, 2017, striking Wampler’s cross-complaint and entering default against Wampler. Also on September 6, 2017, the Court entered judgment on the cross-complaint against Wampler and in favor of Crail in the total amount of $121,870.97, consisting of $66,035.00 in damages for breach of contract and breach of the implied covenant of fair dealing, costs of $5,835.97, and punitive damages for fraud in the amount of $50,000.

On January 18, 2018, Wampler filed a motion under Code of Civil Procedure section 473, subdivision (d), to vacate the September 6, 2017, judgment on the grounds, among others, that the relief granted by default exceeded the demand in the cross-complaint. Crail opposed the motion.

On February 20, 2018, the Court granted Wampler’s motion and vacated the judgment entered on September 6, 2017.

On April 24, 2018, Crail filed this motion for leave to file an amended cross-complaint.

No opposition has been filed.

Analysis:

“The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.” (Code Civ. Proc., § 473, subd. (a)(1).)

The proposed cross-complaint (Motion, exhibit 1) differs from the original as follows:

The proposed cross-complaint (1) removes Edla Enberg as a cross-complainant (who previously dismissed her cross-complaint), (2) removes the sixth and seventh causes of action (which were previously stricken), and (3) revises the prayer for damages to include the full amount of damages sought. (Dowling decl., ¶ 3.) The first two items merely conform the proposed amended cross-complaint to prior procedural developments. The default judgment previously entered in this action was set aside because the original cross-complaint failed to include necessary details regarding the amounts sought by Crail. There is therefore good cause to permit leave to amend the cross-complaint. There is no opposition and the Court will grant the motion with the qualifications below.