2012-00126576-CU-PO

Jason Starn vs. Smoke Island; No Limit Smoke Shop

Nature of Proceeding: Motion to File Amended Complaint

Filed By: Barron, Deborah
Filed By: Barron, Deborah

Plaintiff’s Motion to File Second Amended Complaint is denied.

The Court denied Plaintiffs previous Motion to File Amended Complaint, without
prejudice, on September 3, 2013. Plaintiff had failed to comply with the Rules of Court
with regard to the attorney declaration required by CRC 3.1324(b). The Court struck
the ROE amendment adding Justin Kegley as a plaintiff as procedurally improper.

Plaintiff is attempting to assert a representative action under the Business &
Professions Code section 17200. Plaintiff seeks to add Justin Kegley as a plaintiff and
to add class action allegations, a cause of action for “Conspiracy” and a cause of
action for “Alter Ego.” The declaration in support of the motion is again deficient under
CRC 3.1324(b) as there are no facts provided as to what was recently discovered and
why it was not discovered earlier other than the conclusory statement that additional
“fact finding and additional research” necessitate the amendment.

Plaintiff Jason Starn alleges that he was injured from inhaling nitrous oxide in 2010
that was purchased in Stanislaus and San Joaquin Counties. Justin Kegley alleges
that he was injured two years later in 2012 from inhaling nitrous oxide purchased in
Glenn and Butte Counties. Both Starn and Kegley are allegedly confined to
wheelchairs as a result of their injuries.

Code of Civil Procedure section 473 (a)(1) provides the Court with discretion, in the
furtherance of justice and upon those terms which may be proper, to allow leave to
amend any pleading, to add, strike out, or correct the name of a party, or to provide
substantive amendment thereto. Generally, leave to amend is broadly granted.
However, when the proposed amendment is defective on its face, leave to amend may
be denied. (Huff v. Wilkins (2006) 138 Cal.App.4th 732, 746.) Moreover, leave to
amend may not be justified if the proposed amendment prejudices the opposing
parties. (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.)

Whether amendment is allowed to add a plaintiff to an action depends upon whether
the amendment is based upon a misnomer or, rather, substitutes or adds an entirely
different party. (California Air Resources Board v. Hart (1993) 21 Cal.App.4th 289,
301.) While amendment to correct a honest mistake in a name or status of a plaintiff is
allowed, allowing amendment to substitute an entirely new plaintiff is not favored. (Id.)
The proposed amendment is not merely technical in nature but substantially changes
the nature of the action as it requires defendants to defend against two wholly different
claims in a single action.

More problematic are the proposed class action allegations, which fail as a matter of
law. The proposed class(es) are defined as “every citizen of California over the age of
18 who is authorized to purchase nitrous oxide and any person who did purchase or
use nitrous oxide in California.” (proposed SAC para.1, emphasis added)

Class actions are appropriate in cases where: (1) the questions of law or fact common
to the class are substantially similar and predominate over those issues effecting the
individual members; (2) the class representatives have interests typical of the class;
and (3) where it would be impractical to bring all of the members of the class before
the Court. (C.C.P. §382; see also Brinker v. Superior Court (2012) 53 Cal.4th 1004.)
The class definition must be precise, objective, and presently ascertainable. (Global Minerals & Metal Corp. v. Superior
Court (2003) 113 Cal.App.4th 836, 853.) A class definition is not ascertainable when
the definition is overly broad. Miller v. Bank of America (2013) 213 Cal.App.4th 1,7-8.)
Moreover, if the sole common issue does not predominate over the individualized
damages, class certification is not appropriate. Evans v. Lasco Bathware (2009) 178
Cal.App.4th 1417, 1427 (noting that the sole common issue of defectively designed
shower pans did not predominate over the individual questions of damages. To assess
damages, individual testing was required to determine the extent of the damage
caused by the defective pan. Each home and each shower was different and,
therefore, damages had to be assessed on a case-by-case basis.)

In this case, the class designation is neither precise nor presently ascertainable. The
“common issue” as defined by plaintiff is “every citizen of California over the age of 18
who is authorized to purchase nitrous oxide and any person who did purchase or use
nitrous oxide in California” and who was misled in making the purchase. The
common issue in this case is far outweighed by the individualized facts of each
purchase and the physical damages suffered by the users. The damages claimed by
Starn are not representative of the class as defined, and no ascertainable class has
been alleged. The fact that all purchasers may have a common economic injury
ignores the plaintiff’s most significant damage claim.

In Reply, plaintiff now contends that he is not seeking to add a party by amending a
complaint. Rather he states he is “joining” a party. However, the statute on
permissive joinder by plaintiffs does not apply to the facts here. CCP 378 provides:

“(a) All persons may join in one action as plaintiffs if:

(1) They assert any right to relief jointly, severally, or in the alternative, in respect of or
arising out of the same transaction, occurrence, or series of transactions or
occurrences and if any question of law or fact common to all these persons will arise in
the action; or

(2) They have a claim, right, or interest adverse to the defendant in the property or
controversy which is the subject of the action.

(b) It is not necessary that each plaintiff be interested as to every cause of action or as
to all relief prayed for. Judgment may be given for one or more of the plaintiffs
according to their respective right to relief.

In this case, Jason Starn and Justin Kegley do not assert any right to relief arising out
of the same transaction, occurrence, or series of transactions or occurrences.
Plaintiff is correct in stating he is required to comply with the procedural requirements
applicable to class action lawsuits to bring a representative action under the UCLL.
Arias v Superior Court (2009) 46 Cal.4th 969, 979. However plaintiff’s proposed
pleading establishes that he cannot comply with those requirements.

The Court rejects the argument that the proposed new causes of action are not
“causes of action.” Both Conspiracy and Alter Ego are both commonly pled as
separate claims, even though they must be dependent on stating a claim on another
theory, for purposes of providing clear notice to the defendant of the theories of
liability. Because the proposed amended complaint as a whole is defective on its face, the
motion is denied.

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