Case Number: BC678211 Hearing Date: September 19, 2019 Dept: 4B

[TENTATIVE] ORDER RE: PLAINTIFFS’ MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT

On October 2, 2017, Plaintiffs Saul Lopez and Adela Lopez (“Plaintiffs”) filed this action against Shant Aris Nazaryan and Razmik Nazaryan (collectively, “Defendants”) arising from a motor vehicle accident on October 3, 2015. Plaintiffs named Defendant Marine Nazaryan as a Doe defendant on June 17, 2019. On August 18, 2019, Plaintiffs filed this motion for leave to amend the complaint to add a cause of action for negligent entrustment and a claim for punitive damages. Trial is on October 8, 2019.

The court may, in its discretion and after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading. (Code Civ. Proc., § 473, subd. (a)(1).) “Public policy dictates that leave to amend be liberally granted.” (Centex Homes v. St. Paul Fire & Marine Ins. Co. (2015) 237 Cal.App.4th 23, 32.) “Although courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial . . . this policy should be applied only ‘where no prejudice is shown to the adverse party.’ [Citation]. A different result is indicated ‘where inexcusable delay and probable prejudice to the opposing party’ is shown. [Citation.]” (Magpali v. Farmers Group, Inc. (1996) 47 Cal.App.4th 1024, 487.)

Plaintiffs argue they recently discovered that Defendant Shant Nazaryan admitted to a police officer he was driving 110 miles per hour immediately before the collision. They also contend they recently discovered that Shant Nazaryan’s parents knew he had a bad driving history and had received multiple moving violations while he lived with them, but did not take any steps to correct the son’s driving record and failed to reprimand him. Plaintiffs contend they discovered this information at a June 12, 2019 deposition of Defendant Razmik Nazaryan.

Punitive Damages against Shant Nazaryan

Defendants point out that in August 2017, Plaintiff’s counsel sent a letter to Defendants’ insurer stating “your insured, Shant Nazaryan, was in unlawful operation of his 2015 Corvette in the #4 lane as he traveled behind Mr. Lopez’s vehicle at the self-quoted deadly speed of 110 miles per hour.” (Coleman Decl., Exh. 1 at p. 1.) The letter attaches the police report stating that Shant Nazaryan “related in essence he was driving on I-5 southbound, in the #4 lane, at approximately 110mph.” Thus, Plaintiffs have known for two years that Shant Nazaryan told the police officer he was driving at 110 miles per hour. Accordingly, they knew the basis for the punitive damages claim when they first filed this action.

Plaintiff’s argument that they could not rely on the police report but needed to get deposition testimony about the 110 miles before making this claim in not well taken. No authority states that a plaintiff must obtain admissible evidence before alleging punitive damages.

Plaintiffs have no excuse for waiting two years before seeking to amend the complaint. Allowing a punitive damages claim a few weeks before trial would be prejudicial to Defendant and would require a continuance of the trial.

Negligent Entrustment

Plaintiffs do not state when they discovered Shant Nazaryan’s moving violations which form the basis for the negligent entrustment cause of action. Plaintiffs do not explain why they could not have brought the negligent entrustment cause of action earlier. Given the late date, Defendants would be prejudiced by a new cause of action shortly before trial.

Punitive Damages against Razmik Nazaryan and Marine Nazaryan

Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).) “Malice” is conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on with a willful and conscious disregard of the rights or safety of others. (Civ. Code, § 3294, subd. (c)(1).) “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’ [Citation.]” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.) “As amended to include [despicable], the [Civil Code section 3294] plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.)

Plaintiffs cite no law allowing a punitive damages claim against parents for failing to correct or reprimand an adult child for dangerous driving. Failure to correct or reprimand an adult child is not conduct “which decent citizens should not have to tolerate.”

The motion for leave to amend is DENIED.

Moving party to give notice.