MOTION FOR LEAVE TO FILE AMENDED COMPLAINT
Plaintiffs attempted to reach R Banquet by both mail and telephone to determine if it intended to obtain representation by counsel but never reached a living person and never received a call back. (Plummer Decl., ¶ 6.) The court finds Plaintiffs adequately attempted to meet and confer with Defendant about the status of its representation prior to filing this motion. (See Code Civ. Proc., § 435.5, subd. (a).)
There is no evidence that R Banquet has obtained counsel. However, to date, James Perez has not filed a proof of service of the signed order granting the motion to be relieved as counsel on R Banquet. Thus, James Perez is still R Banquet’s attorney of record.
The motion is DENIED.
5. KRUPP VS. CALIFORNIA AUTOMOBILE INSURANCE COMPANY 2023-01370850 MOTION FOR LEAVE TO FILE AMENDED COMPLAINT
The Motion of Plaintiffs Marshall and Serafina Krupp individually and as trustees for the Marshall Krupp and Serafina Krupp Family Revocable Trust for leave to file a Third Amended Complaint (“TAC”) is GRANTED.
“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 . . .” (Code Civ. Proc. § 473, subd. (a)(1).) “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.)
“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
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However, even if a good amendment is proposed in proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial.” (P&D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1345; internal citations and internal quotation marks omitted.) “Although courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial, this policy should be applied only ‘[w]here no prejudice is shown to the adverse party. . . .’ [Citation.]
A different result is indicated ‘[w]here inexcusable delay and probable prejudice to the opposing party is shown.’ [Citation.]” (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487.)
Plaintiffs seek to file a TAC to add factual allegations supporting punitive damages and a prayer for punitive damages.
Defendant California Automobile Insurance Company (“CAIC”) contends that Plaintiffs’ delay in seeking leave to amend to allege punitive damages is unwarranted. Plaintiff states that the facts underlying the claim – CAIC’s claim documentation and underwriting file and guidelines – first came to light in CAIC document productions on December 11, 2024 and February 28, 2025. (Wilkinson Decl., ¶ 8.) However, it was during the September 8, 2025 deposition of CAIC Underwriting Manager Karen Gallagher that Plaintiffs first learned that: (a) Mercury never inspected the property a second time during the 60-day cancellation period, both as a matter of fact in this case and a matter of policy in all cases; (b) CAIC Claims Manager Michael Burton made the decision to deny the claim and purportedly rescind the policy; and (c) the insurance policy was bound before Mercury even saw the application. (Wilkinson Decl., ¶ 7.)
Plaintiff contends the full picture of what CAIC did with respect to Plaintiffs’ insurance claim did not develop until November 18, 2025, when the Court sustained Plaintiffs’ demurrer to CAIC’s Second Amended Cross-Complaint finding there was no basis for CAIC’s fraud in the insurance application theory which was CAIC’s basis for rescinding Plaintiffs’ insurance policy and denying Plaintiffs’ claim. Therefore, the court finds the delay in seeking leave to allege punitive damages was not unreasonable.
Further, CAIC will not be prejudiced since the court continued the trial date to October 23, 2026. (Wilkinson Supp. Decl., ¶ 9.)
Lastly, CAIC argues the proposed TAC fails to state a viable claim for punitive damages. CAIC may contest the sufficiency of allegations by a motion to strike, demurrer, motion for judgment on the pleadings or other appropriate proceedings. (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048 (Kittredge) [“As Justice Kaufman has noted, even if the proposed legal theory is a novel one, ‘the preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other app ropriate proceedings.’ [Citation.]”)
Plaintiffs are to electronically file and serve the proposed Third Amended Complaint within 5 days.
Plaintiffs to give notice.
6. CHAVARRIA VS. LIM 2024-01390474 MOTION FOR LEAVE TO FILE CROSS COMPLAINT
Defendant Khanh Q. Nguyen’s Motion for Leave to File a Cross- Complaint is GRANTED. Nguyen is ORDERED to file the attached Cross-Complaint within 5 days of this order.