2017-00216701-CU-PA

Gerald Austin vs. Sondra Alane Nevarez

Nature of Proceeding: Motion to Strike the 2nd Amended Complaint

Filed By: Tomlins, Craig A.

Defendants/cross-complainants Sonda Alane Nevarez and Torosl Saraydarian (collectively, “Defendants”) motion to strike plaintiffs Gerald Austin, Sr. and Kathy Brown Austin’s (collectively, “Plaintiffs”) entire Second Amended Complaint (“SAC”) is ruled upon as follows.

Defendants’ request for judicial notice of court documents is granted. In taking judicial notice of these documents, the Court accepts the fact of their existence, not the truth of their contents. (See Professional Engineers v. Dep’t of Transp. (1997) 15 Cal.4th 543, 590 [judicial notice of findings of fact does not mean that those findings of fact are true]; Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120-121 [“[W]hile the existence of any document in a court file may be judicially noticed, the truth of the matters asserted in those documents, including the factual findings of the judge who was sitting as the trier of fact, is not entitled to notice.”]; Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1562-1570.)

This action arises from a motor vehicle accident that occurred on October 24, 2016, in which defendant Nevarez allegedly crashed into a school bus, causing the bus to roll over. Plaintiff Gerald Austin, Sr. was serving as an attendant on the bus at the time of the collision and was injured.

Plaintiffs filed their original complaint on August 2, 2017, alleging motor vehicle and general negligence. Plaintiffs filed their First Amended Complaint on October 19, 2017, alleging motor vehicle, general negligence, and loss of consortium. The Court consolidated Plaintiffs’ case with another case on March 15, 2018, and discovery has been ongoing.

On July 3, 2018, Plaintiffs sought leave to file a SAC to include a claim for punitive damages. Plaintiffs’ proposed SAC was attached to Plaintiff’s counsel’s declaration as Exhibit 1. Plaintiff’s counsel explained the proposed amendments in his declaration, which included checking certain boxes of the form complaint to indicate punitive

damages were being sought and adding Judicial Council Form PLD-PI-001(6) “Exemplary Damages Attachment” to the Complaint with the language proposed in Exhibit 1.

On August 16, 2018, this Court granted Plaintiff’s motion for leave to file the SAC. (ROA 107.) The Court ordered: “Plaintiffs to file and serve their Second Amended Complaint no later than August 28, 2018. Although not required by Court rule or statute, Plaintiffs are directed to present a copy of this order when the amended complaint is presented for filing. The proposed Second Amended Complaint attached to Plaintiff’s moving papers will not be separately filed by the court clerk, but remains with the motion as an exhibit.”

On August 28, 2018, Plaintiffs filed their SAC. (ROA 109.)

Defendants now move to strike the entire SAC on the grounds that the SAC was not filed in conformity with the Court’s order. Specifically, Defendants contend the SAC that was filed was not the exact proposed SAC attached to Plaintiffs’ motion for leave. Defendants argue the filed SAC contains a new cause of action, specifically a loss of consortium cause of action asserted by Mr. Austin, substantial additional allegations in the exemplary damages attachments, improper declaratory statements and legal arguments, and a new prayer for relief for attorneys’ fees to which Plaintiffs are not entitled.

Under section 436, the court may “[s]trike out any irrelevant, false, or improper matter inserted in any pleading” as well as “all or part of any pleading not drawn or filed in conformity with the laws of this state.” (Code Civ. Proc, § 436, subds. (a) and (b).)

As to the motion to strike the entire SAC, the motion is DENIED as the Court is not persuaded the entire SAC contains improper matter or was improperly filed. However, the Court is persuaded that certain material within the SAC is improper and should be stricken, as further discussed below.

As to the prayer for relief, Plaintiffs concede the request for attorneys’ fees should be removed. Accordingly, the motion to strike the request for attorneys’ fees is GRANTED and subsection (g) of the prayer for relief is hereby STRICKEN.

As to the third cause of action for loss of consortium, this cause of action was originally only alleged by plaintiff Kathy Brown Austin. Generally, plaintiff may amend his or her complaint only as authorized by the court’s order.” (Harris v. Wachovia Mortg. (2010)

185 Cal.App.4th 1018, 1023.) In the SAC, Plaintiffs, without leave of Court, added plaintiff Gerald Austin, Sr. to this cause of action and modified the language to state “Plaintiffs jointly as husband and wife” are seeking damages. Plaintiffs concede they added Gerald Austin Sr.’s name to the line that states “Plaintiff:” but they argue this did nothing to amend the cause of action. The Court disagrees. Adding an additional plaintiff to a cause of action is significant and was not an amendment for which Plaintiffs sought leave as required. See, e.g. People ex rel. Dept. Pub. Wks. v. Clausen (1967) 248 Cal. App. 2d 770, 782. Accordingly, the motion to strike the additions made to the third cause of action in the SAC is GRANTED and the additions are hereby STRICKEN.

Finally, as to the amendments to the Exemplary Damages Attachment, Plaintiffs contend the modified attachment includes the same general facts alleged in the

proposed SAC, but the facts alleged are stated with more specificity and include the facts Defendants argued in their opposition to the motion for leave were lacking. That is, Defendants argue in their opposition that the motion for leave should be denied because certain facts were not included in the proposed SAC, such as the type of drugs Nevarez consumed, the time they were consumed, or a description of the collision. Plaintiffs reason they modified the punitive damages attachment to address these arguments and include these specific facts, including the types of drugs consumed, the time the drugs were consumed, the fact Nevarez collided into a school bus, and additional facts supporting the allegation that Nevarez was severely impaired and therefore subject to punitive damages. It is of course axiomatic that “It is unlawful for any person who is under the influence of any alcoholic beverage or drug…to drive a vehicle.” California Vehicle Code section 23152(a)

The Court is not persuaded that the modifications made to the proposed Exemplary Damages Attachment are so immaterial or improper that they should be stricken. Plaintiffs simply expanded upon the general allegations that were included in the proposed SAC Exemplary Damages Attachment. Plaintiffs have provided more details regarding their allegations in support of their request for punitive damages. In its August 16, 2018, Order, the Court granted Plaintiffs’ leave to file the SAC to add a claim for punitive damages. The Court is not persuaded that the allegations regarding punitive damages are in contravention of that Order. Accordingly, the motion to strike the punitive damages allegations is DENIED.

By its ruling herein the Court does not intend to preclude future amendments, appropriately made.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.