Motion for Leave to File Second Amended Complaint (Judge Thomas E. Kuhnle)


SUPERIOR COURT OF CALIFORNIA

COUNTY OF SANTA CLARA

DARA BERMAN-CHEUNG, an Individual; SAM BERMAN CHEUNG, a Minor, by and through his Guardian ad Litem, DARA BERMAN CHEUNG; and BAILEY BERMAN CHEUNG, a Minor, by and through her Guardian ad Litem, DARA BERMAN-CHEUNG,

Plaintiffs,

vs.

COOK GROUP, INC., an Indiana corporation; COOK MEDICAL INCORPORATED a/k/a COOK MEDICAL, INC., an Indiana corporation; COOK MEDICAL, LLC, an Indiana corporation; WILLIAM COOK EUROPE APS; MATTHEW MELL, M.D., an individual; STANFORD HEALTH CARE, a California corporation; and DOES 1 through 50, inclusive,

Defendants.

Case No. 2017-1-CV-307373

TENTATIVE RULING RE: ?MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

 

 

The above-entitled action comes on for hearing before the Honorable Thomas E. Kuhnle on December 7, 2018, at 9:00 a.m. in Department 5.? The Court now issues its tentative ruling as follows:

  1. INTRODUCTION

According to the allegations of the Amended Complaint (?FAC?), filed on March 20, 2017, this action arises out of the wrongful death of Richard Cheung on December 4, 2015, after he was implanted with a medical device called a Cook Gunther Tulip filter.? (FAC, ???18, 30-31.)? The FAC sets forth the following causes of action:? (1) Strict Products Liability ? Inadequate Warning; (2) Strict Products Liability ? Manufacturing Defect; (3) Negligence; (4) Negligent Misrepresentation; (5) Fraudulent Misrepresentation; (6) Fraudulent Concealment; (7) Breach of Express Warranty; (8) Medical Malpractice; (9) Survival Action; and (10) Wrongful Death.

This case is related to multi-district litigation in the Southern District of Indiana ? In re Cook Medical, Inc., IVC Filters Marketing, Sales Practices, and Products Liability Litigation, MDL No. 2570).

Plaintiffs Dara Berman-Cheung, Sam Berman Cheung, and Bailey Berman Cheung (collectively, ?Plaintiffs?) now move for leave to file a Second Amended Complaint.? An opposition to the motion has been filed by Cook Group Incorporated, Cook Medical LLC, f/k/a Cook Medical Incorporated, and William Cook Europe APS (collectively, ?Defendants?).

  1. LEGAL STANDARD

?Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.?? (Code Civ. Proc. ??576.)

The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. ?The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.

 

(Code Civ. Proc., ??473, subd. (a)(1).)

While a motion to permit an amendment to a pleading to be filed is one addressed to the discretion of the court, the exercise of this discretion must be sound and reasonable and not arbitrary or capricious.? And it is a rare case in which a court will be justified in refusing a party leave to amend his pleadings so that he may properly present his case.? If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.

 

(Morgan v. Sup. Ct. (1959) 172 Cal.App.2d 527, 530, internal citations and quotation marks omitted.)

  • DISCUSSION

In the moving papers, Plaintiffs state they seek leave to file a Second Amended Complaint to identify a Doe Defendant ? Cook Incorporated.? Plaintiffs explain that Cook Incorporated was incorrectly identified in the original Complaint and the First Amended Complaint as Cook Medical Incorporated.

Defendants point out in opposition that instead of asking the Court to permit Plaintiffs to change the original claim against ?Cook Medical Incorporated? into a claim against ?Cook Incorporated,? Plaintiffs? motion only seeks to substitute a Doe Defendant.? Defendants contend any amendment to add Cook Incorporated would be futile because any claims against Cook Incorporated would not relate back to the time of the original commencement of this action in March 2017 and would therefore be time-barred.

In reply, Plaintiffs appear to acknowledge that under these circumstances Cook Incorporated should not be substituted as a Doe Defendant and instead the name of ?Cook Medical Incorporated? should be corrected to ?Cook Incorporated.?? Plaintiffs submit an alternate proposed Second Amended Complaint with the reply papers to make this change instead of the Doe substitution.? (Declaration of Matthew R. Lopez re Plaintiffs? Reply to Opposition by Cook Defendants to Plaintiffs? Motion for Leave to File Second Amended Complaint, Ex. 5.)

Code of Civil Procedure section 472, subdivision (a)(1) specifically gives the Court the discretion to authorize a party to correct a mistake in the name of a party.? Moreover, ?where an amendment does not add a ?new? defendant, but simply corrects a misnomer by which an ?old? defendant was sued, case law recognizes an exception to the general rule of no relation back.?? (Hawkins v. Pacific Coast Bldg. Products, Inc. (2004) 124 Cal.App.4th 1497, 1503.)

There will be no prejudice to Defendants in allowing this amendment.? Defendants have had knowledge of these claims since the inception of the lawsuit.? The Court notes that although Defendants appear to have told Plaintiffs? counsel that Defendants? counsel would not appear for Cook Incorporated, Defendants? counsel has filed an opposition to this motion, purportedly on behalf of Cook Incorporated.

For the reasons discussed, Plaintiffs? motion for leave to file the Second Amended Complaint is GRANTED as to the Second Amended Complaint attached to the Declaration of Matthew R. Lopez re Plaintiffs? Reply to Opposition by Cook Defendants to Plaintiffs? Motion for Leave to File Second Amended Complaint as Exhibit 5.[1]

The Court will prepare the final order if this tentative ruling is not contested.

 

NOTICE:? The Court does not provide court reporters for proceedings in the complex civil litigation departments. ?Parties may arrange for a private court reporter to provide services, but those arrangements must be consistent with the local rules and policies posted on the Court?s website.

[1] The proposed Second Amended Complaint includes the wrong case number in the caption.? The case number must be amended to 2017-1-CV-307373.