2012-00135092-CL-CL

Depo Dynamics vs. Herman Franck

Nature of Proceeding: Motion to File Amended Answer

Filed By: Franck, Herman

Defendant’s motion for leave to file first amended general denial is DENIED.

The Court notes that this matter is currently set for trial on 10/25/2013.

This is an action to collect a debt allegedly owed by defendant attorney. The latter
now seeks to add what he characterizes as an affirmative defense based on a “claim
of offset.” This claim of offset arises out of plaintiff’s alleged defamation of defendant
by making untruthful statements about defendant on at least two websites. Defendant
asserts that as a result of these defamatory postings, he has suffered both economic
and non-economic damages. Although the proposed amended general denial states
that defendant “claims offset damages equal to the entire amount [sic] by Plaintiffs
herein for defamation/libel per se…,” it also asserts “Damages are further claimed
based on intentional and/or negligent infliction of emotional distress” and expressly
seeks “punitive damages against Plaintiff in an amount according to proof…” (See,
Prop. Am. Denial, pp.4-5.) Defendant contends the defamatory publications have not
yet been removed. (Id., at p.6.)

The motion is denied because it not supported by a declaration which complies with
the mandatory provisions of CRC Rule 3.1324(b)(2)-(4). In particular, the supporting
declaration admits the allegedly defamatory postings on which the proposed
amendment is based were discovered several months ago in “approximately March-
April 2013” but the Court finds no sufficient explanation for defendant’s waiting until the
eve of trial to seek to amend the answer. Thus, while it is generally true that
amendments to pleadings are to be granted with great liberality, an unwarranted delay
in seeking to amend is a valid ground on which a motion to amend may be denied.
(See, e.g., Huff v. Wilkins (2006) 138 Cal.App.4th 732, 736.)

Additionally, the Court rejects defendant’s suggestion that plaintiff need not be
afforded an opportunity to conduct discovery on the new allegations. Although
defendant may have disclosed in his own discovery responses that he was aware of
the allegedly defamatory postings, this alone would not necessarily trigger plaintiff’s own discovery into the matters now sought to be added to defendant’s answer.
Instead, it is the allegations actually found in the parties’ pleading which frame the
issues which need to be proven at trial and therefore which are the subject of
discovery requests. Thus, until defendant actually amended his answer to include
these allegations of defamation, plaintiff had no legitimate reason to conduct discovery
on them. At the very least, plaintiff must be afforded the opportunity to conduct basic
discover on the facts on which the new allegations are based and the extent of the
claimed damages which, according to the proposed pleading, include not only
economic and non-economic compensatory damages but also punitive damages.

Furthermore, while the proposed amendment suggests the new claims are merely
being asserted as a setoff against plaintiff’s own damages caused by the
“defamation/libel per se,” there appears to be no similar explicit limitation on
defendant’s new claims of intentional and negligent infliction of emotional distress,
including the punitive damages apparently being sought. (See, Prop. Am. Denial, pp.4-
5.) Accordingly, it appears that plaintiff would also need an opportunity to challenge
not only the propriety of these new allegations being included in an answer rather than
in a cross-complaint but also the sufficiency of the new allegations.

In light of both defendant’s unexplained delay in seeking to amend his answer and the
substantial prejudice plaintiff would face if the proposed amendment were permitted
less than ten days before the current trial date, defendant’s motion is hereby denied.

Moving counsel is admonished for failing to comply with CRC Rule 2.111(3) and Rule
3.1110(b)(3)-(4).

This minute order is effective immediately. No formal order or other notice is required.
(Code Civ. Proc. §1019.5; CRC Rule 3.1312.)