RICHARD QUINTILONE II VS JERID R MAYBAUM ET AL

Tentative Rulings

Case Number: ****8748 Hearing Date: February 16, 2022 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: February 16, 2022 TRIAL DATE: April 25, 2022

CASE: Richard Quintilone II, et al. v. Jerid R. Maybaum, et al.

CASE NO.: ****8748

MOTION FOR LEAVE TO FILE FIFTH AMENDED COMPLAINT

MOVING PARTY: Plaintiff Richard Quintilone II, individually and dba Quintilone and Associates

RESPONDING PARTY(S): Defendants American Guarantee and Liability Insurance Company and Daniels-Head Insurance Agency Inc. (separate oppositions)

CASE HISTORY:

• 07/17/17: Complaint filed.
• 10/16/17: Defendant Zurich American Insurance Company dismissed.
• 12/19/17: First Amended Complaint filed.
• 01/04/18: Defendant Zurich American Insurance Company dismissed without prejudice.
• 05/30/18: Second Amended Complaint filed.
• 09/06/18: Third Amended Complaint filed.
• 10/15/18: Leave to Amend Third Amended Complaint per stipulation granted; Fourth Amended Complaint deemed filed.
• 04/08/19: Complaint dismissed as to Defendants Jerid R. Maybaum and Jacks & Maybaum LLP.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Originally, Plaintiff alleged that the attorney Defendants steered litigation brought against him by his clients toward emotional distress damages, which were not covered by the subject malpractice liability insurance policy issued by Defendant insurer and recommended by Defendant insurance agency. The attorney Defendants have now been dismissed from the case, leaving the insurer Defendants.

Plaintiff moves for leave to file a fifth amended complaint.

TENTATIVE RULING:

Plaintiff’s motion for leave to file fifth amended complaint is DENIED.

DISCUSSION:

Motion For Leave To File Fifth Amended Complaint

Plaintiff seeks leave to file a fifth amended complaint to add two causes of action and class claims that arise, according to Plaintiff, from the same facts and circumstances as the fourth amended complaint and the original complaint.

The Court may, “at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, . . . allow the amendment of any pleading.” (CCP 576.) A motion to amend a pleading before trial must meet the following requirements:

(a) Contents of motion

A motion to amend a pleading before trial must:

(1) Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments;

(2) State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and

(3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.

(b) Supporting declaration

A separate declaration must accompany the motion and must specify:

(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.

(CRC 3.1324.)

Contents of Motion

Plaintiff has included a copy of the proposed fifth amended complaint with this motion, as required by CRC 3.124(a)(1). (Notice of Lodging of [Proposed] Fifth Amended Complaint.)

Plaintiff has not indicated in the motion which allegations are proposed to be added or deleted by page, paragraph, and line number, as required by CRC 3.124(a)(2) and (a)(3).

Thus, the Court finds that Plaintiff has not complied with the requirements for the motion itself. However, given that Plaintiff attached a redline version of the 4AC showing the proposed changes, and given that neither Defendant opposed the motion on this basis, the Court will consider whether the supporting declaration satisfies the requirements of CRC 3.124(a).

Supporting Declaration

The Declaration of Attorney Jillian M. Reyes accompanying the motion does not explain when the facts giving rise to the amended allegations were discovered and why the request for amendment was not made earlier, as required by CRC 3.124(b)(3) and (4). Moreover, to the extent that the motion provides any information on these topics, it states only that the facts supporting these amendments “became apparent through information obtained through the discovery process, including the recent deposition of Plaintiff.” (Motion, at p. 2, bold emphasis added.) To the extent that the amendments are based on Plaintiff’s deposition, by definition they are based on information that Plaintiff already knew and that was not, therefore, “obtained” through the discovery process.

Although Plaintiff attempts to cure this defect in a supplemental reply declaration, even the reply declaration indicates that the information was discovered over two years ago (December 5, 2019), and a year and a half ago (August 7, 2020), which was merely “confirmed” by Plaintiff in his own recent declaration and deposition. (Reyes Reply Decl. 2-5.) Even this reply declaration, however, does not explain the delay in requesting these amendments. Asserting that it was brought the “soonest Plaintiffs and counsel could bring the motion, including after Defendants’ deposition testimony and Quintilone’s deposition,” is insufficient, given that Defendants’ deposition testimony was taken a year and a half to two years ago, and Plaintiff has not explained why the motion could not have been brought until after his own deposition. (Reyes Reply Decl. 3.)

Nor does the declaration explain why the amendment is necessary and proper, as required by CRC 3.124(b)(2), beyond a conclusory assertion that each cause of action and allegation alleged in the 5AC are “based on the same set of facts and circumstances as alleged in the 4AC and original Complaint.” (Reyes Decl. 4.) Nor does the declaration state all of the effects of the amendment shown in the redlined version, as required by CRC 3.124(b)(1), and the explanation in the declaration contradicts the explanation in the motion itself and the changes in the redlined version of the pleading. (Compare Motion, at p. 2 [seeking leave to “include two additional causes of action and class claims”] with Reyes Decl. 4 [stating that the effect is to “remove the legal malpractice cause of action . . . in place for [sic] a fraudulent inducement cause of action against Defendants DHIA and AGLIC, and class action allegations against all Defendants”] and Reyes Decl., Exh. 2 [indicating, in the redlined version of the pleading, changes that are not mentioned in the motion or declaration].)

Thus, the Court finds that the declaration does not comply with the requirements of CRC 3.124(b).

Moreover, Defendants have raised legitimate concerns as to prejudice, particularly in light of the absence of any showing of diligence on the part of Plaintiff in raising these new claims. “[E]ven if a good amendment is proposed in proper form, unwarranted delay in presenting it may – of itself – be a valid reason for denial.” (Roemer v. Retail Credit Co. (1975) 44 Cal.App.3d 926, 939-940.) Here, given Plaintiff’s failure to explain when the new facts were discovered, as required by CRC 3.124, and Plaintiff’s inadequate explanation offered in reply, the motion would raise serious concerns even if Plaintiff had complied with the requirements of CRC 3.124.

Accordingly, the motion for leave to file a fifth amended complaint is DENIED.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: February 16, 2022

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.

b"

Case Number: ****8748 Hearing Date: October 22, 2021 Dept: 47