CASE NAME: McCUAN? vs.? EPIC CARE
HEARING ON MOTION FOR LEAVE TO FILE A 1st Amended COMPLAINT
FILED BY RANDY MCCUAN, AMY MCCUAN
* TENTATIVE RULING: *
Plaintiffs? motion for leave to amend pursuant to Cal. Code of Civil Procedure ?473 is granted.? The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading.
The court has discretion to impose conditions on leave to amend the complaint, which are just, i.e., intended to compensate the defendants for any inconvenience the belated amendment may cause. Armenta ex rel. City of Burbank v. Mueller Co.?(2006) 142 Cal.App.4th 636, 642.? Here, Defendant Nagesetty has a pending Motion for Summary Judgment that was continued to allow Plaintiffs to move to amend their complaint. In their Opposition to the MSJ, Plaintiffs attempted to establish a triable issue of material fact by raising a theory of recovery not reasonably contemplated in the original pleadings.? Plaintiffs opposed the motion on the ground the Defendant?s MSJ did not address Dr. Nagesetty?s alleged negligence in performing an unnecessary surgery on August 31, 2012.? Instead of granting the motion in Defendant?s favor, the court continued the motion to allow Plaintiffs an opportunity to bring a proper motion for leave to amend. On March 13, 2015, the court ruled the summary judgement motion would be deemed granted if Plaintiffs failed to file a motion for leave to amend the complaint.
Since the court is granting Plaintiffs? motion for leave to amend, the amended complaint will supersede the original pleading. In the amended complaint, Plaintiffs chose to include all theories of recovery under the same cause of action for negligence.? Defendant?s motion for summary judgment, as it stands, cannot be granted because it does not completely dispose of the cause of action.? However, the court acknowledges it had already determined there were no triable issues of material fact as to whether Dr. Nagesetty?s treatment fell below the standard of care based on theory of delayed diagnosis of Plaintiff?s cancer, which was alleged in the original complaint.
So, in fairness to Defendant Nagesetty and as a condition of granting this motion for leave to amend, the court finds the issue of negligence of the part of Dr. Nagesetty based on a theory of delayed diagnosis of Plaintiff Randy McCuan?s cancer, has been adjudicated in Defendant?s favor.? The negligence claim against Defendant Nagesetty based on harm caused by alleged unnecessary surgery remains at issue.
The hearing date of June 12, 2015 for Defendant?s Motion for Summary Judgment is vacated.? Plaintiffs shall file the amended complaint on or before May 8, 2015.
Defendant?s Objection to Evidence
Objection 1.? Declaration of Emily Wecht Polcari in Support of the Reply.? Overruled.
Objection 2.? Exhibit 9 to Polcari?s Declaration.? Sustained.? Relevancy.
Objection 3.? Exhibit 10 to Policari?s Declaration.? Sustained.? Relevancy.