Dec 04, 2022
Monday, December 5, 2022, 1:30 p.m.
Hon. Christopher Honigsberg
600 Administration Drive, Santa Rosa, CA  95403
Appearances are required either in person in Courtroom 10 or via Zoom.  if ALL parties stipulate to a perticular tentative ruling or all of them please notifiy the JA and that motion may be dropped from calendar.  For any additional information please contact Judge Honigsberg's judicial assistant, Melissa Waters at (707)521-6723.
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SCV-263456, Abel v McCutchan, Jr.

Plaintiff, Richard Abel (“Plaintiff”) alleges that he hired Edward McCutchan (“McCutchan”) with his firm Sunderland/McCutchan LLP (“SMP”), to represent him in SCV-245738, Liebling, et al. v. Goodrich, et al. (“the Prior Action”). Plaintiff has added several additional defendants through Doe Amendments, including but not limited to Jacinda Duval (“Duval”), Bill Hing (“Hing”), Verna Fung (“Fung”), Justin Poeng (“Poeng”), Nansi Ida Weil (“Weil”), Matthew Zdanek (“Zdanek”), Robert J. Sunderland (“Sunderland”), Dale Davis (“Davis”), Jim Nord (“Nord”)(Nord, Davis, Duval, Hing, Fung, Poeng, and Zdanek hereinafter referred to as “Represented Doe Defendants”), and Sunderland McCutchan, Inc. (“SMI”) (SMI, SMP, McCutchan and Sunderland jointly referred to as “Attorney Defendants”) (all defendants together referred to as “Defendants”). The Prior Action involved 97 plaintiffs and 28 defendants. Plaintiff alleges that Defendants negligently mishandled the litigation which resulted in Plaintiff’s award being diminished, allowed defendant Zuckerman to obtain bankruptcy protection shielding him from the judgment, miscalculated how much of the award Plaintiff was entitled to, failed to allocate any of the award for fees and costs to Plaintiff, and has refused to pay back to Plaintiff a credit which he owes Plaintiff. 
This matter is on calendar for the thirteen motions by filed by Plaintiff and Defendants.
             I.      Preliminary Matters
Any objections which are not mentioned particularity are OVERRULED. All unopposed requests for judicial notice are GRANTED.
          II.      Motion for Leave to Amend
Plaintiff has filed a motion pursuant to Cal. Code Civ. Proc. (“CCP”) § 473 for leave to amend the FAC.
Plaintiff filed the initial complaint on November 2, 2018, naming 100 Doe defendants (the “Complaint”). Plaintiff filed the First Amended Complaint (“FAC”) on November 16, 2020, adding causes of action for accounting and injunctive relief. On December 9, 2021, Plaintiff filed 11 Doe amendments, including Jacinda Duval as Doe 7, Bill Hing as Doe 8, Verna Fung as Doe 9, Justin Poeng as Doe 11, Nansi Ida Weil as Doe 15, and Matthew Zdanek as Doe 16 (hereinafter collectively referred to as “Dismissing Defendants”). Dismissing Defendants have each filed motions to dismiss under Code of Civil Procedure (“CCP”) section 583.210. After Dismissing Defendants had filed these motions, Plaintiff filed the instant motion for leave to amend on July 15, 2022.
A.    Governing Law
The California Code of Civil Procedure provides that a court “may in the furtherance of justice, and on any terms as may be proper” allow a party to amend any pleading to correct a mistake. CCP § 473(a)(1). Likewise, the court may “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”. CCP § 473(a)(1).
The general rule is “liberal allowance of amendments.” Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; see Lincoln Property Co., Inc. v. Travelers Indemnity Co. (2006) 137 Cal.App.4th 905, 916. The “policy of great liberality” applies to amendments “at any stage of the proceedings, up to and including trial.” Magpali v. Farmers Group (1996) 48 Cal.App.4th 471, 487. “Absent a showing of prejudice to the adverse party, the rule of great liberality in allowing amendment of pleadings will prevail.” Board of Trustees v. Superior Court (2007) 149 Cal. App.4th 1154, 1163.
Absent a showing of prejudice, delay alone is not a basis for denial of leave to amend. Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 563. “(I)t is irrelevant that new legal theories are introduced as long as the proposed amendments relate to the same general set of facts.” Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048 [internal citations omitted].
The cases on amending pleadings during trial suggest trial courts should be guided by two general principles: (1) whether facts or legal theories are being changed and (2) whether the opposing party will be prejudiced by the proposed amendment. Frequently, each principle represents a different side of the same coin: If new facts are being alleged, prejudice may easily result because of the inability of the other party to investigate the validity of the factual allegations while engaged in trial or to call rebuttal witnesses. If the same set of facts supports merely a different theory [then] no prejudice can result.
McMillin v. Eare (2021) 70 Cal.App.5th 893, 910, quoting City of Stanton v. Cox (1989) 207 Cal.App.3d 1557, 1563.
It is within the Court’s discretion to deny leave to amend where the amendment has been pursued in a dilatory manner, and that defendant has been prejudiced by the delay. Prejudice exists where the amendment would result in the delay of trial, where there has been a critical loss of evidence, where amendment would add substantially to the costs of preparation, or where it would substantially increase the burdens of discovery. Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488; see P & D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1345; Fisher v. Larsen (1982) 138 Cal.App.3d 627, 649.
Great liberality applies to amendment unless the amendment raises new and substantially different issues from those already pleaded. McMillin v. Eare, supra, 70 Cal.App.5th at 1379. In exercising its discretion over amendment, the court will consider whether there is a reasonable excuse for the delay, whether the change relates to facts or legal theories, and whether the opposing party will be prejudiced by the amendment. Duchrow v. Forrest (2013) 215 Cal.App.4th 1359, 1378. The underlying merits of the proposed cause of action amendments are not relevant to determining whether amendment is appropriate, as long as they relate to the same general set of facts, as the amended pleadings may be attacked by demurrer, motion for judgment on the pleadings, or other similar proceedings. Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048. Denying leave to amend due to failure to sufficiently plead a cause of action would be most appropriate where the defect cannot be cured by further amendment. California Casualty Gen. Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 280–281; disapproved of on different grounds by Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390. The exception would lie where a plaintiff makes contradictory pleadings. “As a general rule a party will not be allowed to file an amendment contradicting an admission made in his original pleadings. If it be proper in any case, it must be upon very satisfactory evidence that the party has been deceived or misled, or that his pleading was put in under a clear mistake as to the facts.” Brown v. Aguilar (1927) 202 Cal. 143, 149.
Motions to amend a pleading must contain a copy of the proposed amended pleading, what allegations will be changed, and where the changes are located, by page, paragraph, and line number. Cal. Rules of Court (“CROC”), rule 3.1324 (a).
While motions to amend a pleading are generally within the discretion of the court, it does require that some showing be made which justifies the court’s exercise of discretionary power. Baxter v. Riverside Portland Cement Co. (1913) 22 Cal.App. 199, 201. Though there is no statute requiring the filing of an affidavit, it is the burden of the moving party to place before the court such material to evidence that the ends of justice will be served through granting the motion. Plummer v. Superior Court for Los Angeles County (1963) 212 Cal.App.2d 841, 844. Any motion to amend must be accompanied by a supporting declaration stating the effect of the amendment, why the amendment is necessary and proper, when the changed facts were discovered, and the reasons why amendment was not made earlier. CROC, rule 3.1324 (b).
B.     Analysis
First, Plaintiff has failed to produce any of the requirements under Rule 3.1324 beyond a copy of the proposed amended complaint and a barebones declaration which does not meet all the required criteria. See Plaintiff’s Declaration, Exhibit A, the Proposed Second Amended Complaint (“PAC”). It is deleterious to Defendants’ ability to respond for Plaintiff to have not included the required list of revision as required under Rule 3.1324 (a), as it inhibits the ability of both Defendants and the Court to review the changes Plaintiff proposes. As noted, Plaintiff’s declaration in support is also deficient. It fails to delineate the effect of the amendment, why the amendment is necessary and proper, when the facts giving rise to the allegations were discovered, and why the request for amendment was not made earlier. Plaintiff’s declaration is deficient, but this is capable of remedy, and allowing Plaintiff an opportunity to place these facts before the Court appears proper.
Therefore, this motion is CONTINUED to February 8, 2023 at 3:01 pm in Department 18. Plaintiff shall file and serve a supplementary declaration meeting all the criteria established in CROC, Rule 3.1324 by December 29, 2022. Defendants are allowed to file a supplementary opposition in compliance with CCP § 1005 according to the new hearing date if they deem it necessary.
       III.      Motions to Dismiss
The Court previously analyzed Dismissing Defendants’ motions to dismiss and found that Plaintiff’s possible amendment might have provided claims which were not outside the statutory period of CCP § 583.210. Plaintiff now argues that Dismissing Defendants have waived their right to dismiss under CCP § 583.210. Plaintiff makes no showing that Dismissing Defendants have mislead him into failing to serve the summons timely. This is the standard required in finding waiver under CCP § 583.210. See Brookview Condominium Owners' Assn. v. Heltzer Enterprises-Brookview (1990) 218 Cal.App.3d 502, 514. Plaintiff’s motion for leave to amend has been continued, therefore it is appropriate to continue these matters again to be considered after Plaintiff’s motion for leave to amend has been adjudicated. Therefore, this motion is CONTINUED to February 8, 2023 at 3:01 pm in Department 18 for the court to rule only on the issue of whether, if Plaintiff’s amendment is successful, there remains a basis to dismiss Dismissing Defendants under CCP § 583.210 et seq.
       IV.      Plaintiff’s Motion to Deem Admissions as to Lenora Verne Fung, Jacinda Duval, and Nansi Weil
Dismissing Defendants’ motions for dismissal have been continued, therefore it is appropriate to continue these matters to be considered after the Court has determined whether Dismissing Defendants are proper parties to the case. Therefore, this motion is CONTINUED to February 8, 2023 at 3:01 pm in Department 18.
          V.      Motion to Compel Further Responses to RFAs from Plaintiff by Jacinda Duval
Dismissing Defendants’ motions for dismissal have been continued, therefore it is appropriate to continue these matters to be considered after the Court has determined whether Duval is a proper party to the case. Therefore, this motion is CONTINUED to February 8, 2023 at 3:01 pmin Department 18.
       VI.      Defendants’ Enforcement of Sanctions and Additional Sanctions
As to the writ of execution, there is no authority provided for a motion for writ of execution. Barring some showing of the necessity of a court order in obtaining the writ, the lack of supporting authority is fatal to the request.
CROC, Rule 2.30 allows the court to, within its discretion, impose sanctions for violations of the Rules of Court. See CROC, Rule, 2.30; Vidrio v. Hernandez (2009) 172 Cal.App.4th 1443, 1458. Plaintiff has a point in stating that Defendants have not identified a Rule of Court which he has violated. See Plaintiff’s Opposition to the Motion Filed 3/16/2022. Defendants try to turn this around in the reply by stating that Plaintiff has violated a court order, but they provide no authority linking the violation of a court order to CROC 2.30. There is no viable basis provided for imposition of sanctions under CROC 2.30.
CCP section 177.5 authorizes a court, upon notice in a party’s papers or the court’s own motion, to impose reasonable monetary sanctions of up to $1,500, payable to the court, for violation, without good cause of substantial justification, of a lawful court order. Any court order granting sanctions must detail the conduct or circumstances justifying the sanctions. Ibid. When a court is exerecising it’s discretion under CCP § 177.5, “(t)hat discretion must be exercised in a reasonable manner with one of the statutorily authorized purposes in mind and must be guided by existing legal standards as adapted to the current circumstances.” People v. Ward (2009) 173 Cal.App.4th 1518, 1527.
The Court here does not find the circumstances surrounding the unpaid monetary sanctions for discovery orders justifies ordering additional sanctions under CCP § 177.5 It appears that there is substantial dispute between the parties as to whether each party has paid all sanctions owed for the numerous discovery orders adjudicated within this case. Additionally, Plaintiff argues that he has limited financial means, and the Court does not find that the entry of additional sanctions would be either just or serve any purpose in encouraging Plaintiff to comply with the underlying order. Therefore, the Court is not inclined to grant sanctions under CCP § 177.5.


The motion for additional sanctions is DENIED.


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