Case Number: KC067960??? Hearing Date: December 21, 2016??? Dept: J
Re: Jacquelyn Grillo, etc., et al. v. State Farm General Insurance Company, etc., et al. (KC067960)
MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT
Moving Parties: Plaintiffs Jacquelyn Grillo, Andrew Grillo and Jacquelyn C. Grillo, D.D.S., Inc.
Respondenst: Defendants State Farm General Insurance Company, State Farm Fire and Casualty Company, Dennis A. Rosene Insurance Agency, Inc. and Dennis A. Rosene.
POS: Moving OK; Opposing OK
This is a breach of contract action brought by plaintiffs against their workers? compensation insurance carrier. Plaintiffs allege that defendants refused to provide a defense and indemnify them against a claim despite a contractual obligation to do so. The complaint was filed on 10/9/15. The First Amended Complaint, filed on 2/23/16, asserts causes of action for:
1. Breach of Contract
2. Breach of Duty of Good Faith and Fair Dealing
3. Negligence
On 4/29/16, plaintiffs dismissed State Farm General Insurance Company, without prejudice. The Final Status Conference is set for 3/6/17. A jury trial is set for 3/14/17.
Plaintiffs Jacquelyn Grillo, Andrew Grillo and Jacquelyn C. Grillo, D.D.S., Inc. (?plaintiffs?) move pursuant to CCP ? 473 for an order granting them leave to file a proposed Second Amended Complaint (?SAC?). The proposed SAC contains two new causes of action for negligent infliction of emotional distress and intentional infliction of emotional distress, adds additional facts to support a claim for punitive damages and adds additional facts to the negligence cause of action.
The court previously ordered punitive damages allegations stricken from plaintiffs? First Amended Complaint, but advised them that they could have leave to amend same if additional facts developed during discovery. Plaintiffs contend that they learned through discovery that there was a deliberate attempt by defendants to sabotage their right to coverage. Plaintiffs also contend that the two new causes of action are based on the same operative facts, and that there is no prejudice to defendants as both plaintiffs were both questioned and testified about emotional distress during their depositions.
?The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading?? CCP ? 473(a)(1); and see ? 576. ?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. Richter v. Adams [(1941)] 43 Cal.App.2d 184, 187; Eckert v. Graham [(1933)] 131 Cal.App. 718, 721. 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.? Guidery v. Green [(1892)] 95 Cal. 630, 633; Marr v. Rhodes [(1900)] 131 Cal. 267, 270. 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. Nelson v. Superior Court [(1950)] 97 Cal.App.2d 78; In re Estate of Herbst [(1938)] 26 Cal.App.2d 249; Norton v. Bassett [(1910)] 158 Cal. 425, 427.? Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.
A separate declaration must accompany the motion to amend a pleading specifying the following: (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made earlier. The motion must also include a copy of the proposed amendment, and identify by page, paragraph, and line number any additions to and deletions from the prior pleading. CRC 3.1324(a).
Plaintiffs counsel?s declaration fails to set forth what specific, ?new? facts were unearthed during the discovery process which would support a pleading of punitive damages. Plaintiffs do not address their proposed amendment to include Brandt attorneys? fees. Additionally, counsel states that ?the recent depositions of Plaintiffs, and in particular JACQUELYN GRILLO, disclosed additional information that would warrant amending the complaint to allege causes of action for intentional infliction of emotional distress and negligent infliction of emotional distress.? (Mahoney Decl., ? 4). It is unclear how this information, provided by plaintiffs, would not have been known or available to plaintiffs earlier. Defendants, moreover, contend that Plaintiff Andrew Grillo testified in his 11/10/16 deposition that he is not claiming emotional distress damages in this case. The court cannot confirm the validity of this statement, as defendants failed to attach any excerpts from this deposition.
Based on the foregoing, the motion is denied, without prejudice.