Bren vs. Rebeil

lawsuit because I wanted to harass the District, punish it through the litigation process, cause it to incur unnecessary attorney’s fees, or force it to incur unnecessary litigation expenses.” (Decl. of Steinhardt, ¶¶ 12, 13).

In support of the District’s contention that this action was not brought in good faith, the District argues that Plaintiff took the position that the tournament was a “field trip”/ “excursion” on two prior occasions during litigation, yet took the opposition position in her Opposition to the motion for summary judgment. First, the District notes Plaintiff’s complaint at paragraph 41, wherein she alleges: “Defendant and its employees have a duty to Avery Steinhardt to ensure she is kept safe at school and during school sponsored excursions.”

Next, Defendant cites to Plaintiff’s opposition to Defendant’s motion for leave to amend, at Pg. 11:24-27, wherein she states: “Plaintiff’s causes of action are openly and obviously derived from the events that took place during a school sponsored field trip at the end of 2022. There is no case to be made for the District having recently discovered this field trip. It is a material, essential, and central fact to the case.” (See ROA 129).

In response, Plaintiff argues that she opposed the notion that the tournament was a “field trip” for purposes of the immunity statute and never conceded that the tournament was subject to immunity when referring to the tournament as a “field trip” or “excursion”.

Plaintiff declares: “I understood that the District later raised a defense based on the fact that some of the misconduct occurred during a field trip. I never understood that defense to mean that my entire case necessarily lacked merit or that the District could not be held responsible for any of its conduct concerning Mr. Lutz.” (Decl. of Steinhardt, ¶ 10). She also declares: “I also never intended, by acknowledging that the San Diego basketball tournament was likely a field trip, to concede that the District could not be held responsible for what happened to me. I understood those to be different issues.” (Decl. Of Steinhardt, ¶ 11).

The court finds that Plaintiff did not concede the issue of immunity. First, as mentioned above, not all the alleged conduct was subject to the immunity statute. Second, as the court found in Doe, supra, and the similar cases cited by both parties, the determination of whether an off-campus event falls within the immunity statute requires an analysis of various factors, and goes beyond one’s reference to the term “field trip” or “excursion.”

Accordingly, the court finds that Plaintiff brought and maintained the action in good faith, and the motion is denied.

Defendant CUSD shall give notice. 5 Bren Plaintiffs Angela Bren and Cary Bren’s motion for leave to amend to file a second amended vs. Rebeil complaint is DENIED without prejudice.

Plaintiffs seek leave to amend to file a second amended complaint that adds allegations that Defendants added an illegal fifth floor basement to their property to the already existing causes of action, which is against the CC&Rs. Plaintiffs do not seek to allege additional causes of action.

Defendants oppose, arguing that Plaintiffs fail to offer a factual basis for the new allegations, that the claims are time-barred, and that granting leave to amend would severely prejudice Defendants as they no longer live at the property and given the expanding costs of discovery. 20

Leave to amend should be granted liberally to accomplish substantial justice for both parties. (Code Civ. Proc., § 473, subd. (a); Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 488- 489 (“Hirsa”).) “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....” (Morgan v. Sup. Ct. (1959) 172 Cal.App.2d 527, 530.) Prejudice includes “delay in trial, loss of critical evidence, or added costs of preparation.” (Solit v.

Tokai Bank, Ltd. New York Branch (1999) 68 Cal.App.4th 1435, 1448.) “The power to permit amendments is interpreted very liberally as long as the plaintiff does not attempt to state facts which give rise to a wholly distinct and different legal obligation against the defendant.” (Herrera v. Superior Court (1984) 158 Cal.App.3d 255, 259.) “Allowing the filing of [_] an amendment is in furtherance of justice and in keeping with the fundamental policy of our courts that cases should be decided on their merits.” (Hirsa, supra, at p.490.)

It is “an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.) “A trial court has broad discretion to allow the filing of amendments to pleadings to conform to proof,” including “after a trial has been concluded” to conform to the proof. (Nelson v. Gaunt, 125 Cal. App. 3d 623, 636 (1981)).

Under California Rules of Court Rule 3.1324(a), a motion to amend a pleading shall (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. Under California Rule of Court Rule 3.1324(b), 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.

Here, the court agrees with Plaintiffs that Defendants’ arguments go towards the merits of Plaintiffs’ new allegations—i.e., whether or not Plaintiffs can actually prove the new allegations and whether or not those claims are time-barred. However, a motion for leave to amend is not the mechanism to challenge the sufficiency of those claims. A demurrer, a motion for summary judgment/summary adjudication, and/or trial would be.

Nevertheless, the court finds that Plaintiffs have not substantially complied with the procedural requirements for leave to amend under Rule 3.1324. Specifically, in the moving papers, Plaintiffs’ counsel’s declaration does not testify as to when the facts giving rise to the amended allegations were discovered and/or the reasons why the request for amendment was not made earlier. While counsel’s declaration on reply provides more context, the declaration still fails to identify when counsel discovered alleged pictures of the Faith 5 Property illegal fifth level basement.

In any event, the general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537). While the court has discretion to consider new evidence on reply, the inclusion “of additional evidentiary matter with the reply should only be allowed in the exceptional case ...’’ (Id.) Here, the court does not find that exceptional circumstances exist to consider Plaintiffs’ new evidence on reply

For these reasons, the motion is DENIED without prejudice.

Plaintiffs to give notice. 6 Paradigm Petitioners Paradigm Sports Management, LLC, and Paradigm MMA Sports Manageme Management, LLC (collectively, the “Petitioners” or “Paradigm”) move to nt, LLC vs. compel Respondents Timothy Simpson, Daniel Maudsley, and Chosen Advisory Simpson Group, LLC, (collectively, “Respondents”) to resume ongoing arbitration proceedings and to stay this action pending outcome of the parties’ arbitration. For the following reasons, the petition is DENIED.

Standard on Motions to Compel Arbitration

The right to arbitration depends upon contract; a petition to compel arbitration is simply a suit in equity seeking specific performance of that contract. (Little v. Pullman (2013) 219 Cal.App.4th 558, 565.) The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. (Ibid.) In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court’s discretion, to reach a final determination. (Ibid.)

Employees’ Statutory Right to Withdraw from Arbitration

Code of Civil Procedure section 1281.98(a)(1) provides:

In an employment or consumer arbitration that requires, either expressly or through application of state or federal law or the rules of the arbitration provider, that the drafting party pay certain fees and costs during the pendency of an arbitration proceeding, if the fees or costs required to continue the arbitration proceeding are not paid within 30 days after the due date, the drafting party is in material breach of the arbitration agreement, is in default of the arbitration, and waives its right to compel the employee or consumer to proceed with that arbitration as a result of the material breach.

(Code Civ. Proc., § 1281.98(a)(1).)

Subdivision (b) continues: “If the drafting party materially breaches the arbitration agreement and is in default under subdivision (a), the employee or consumer may unilaterally elect to . . . [¶] [w]ithdraw the claim from arbitration and proceed in a court of appropriate jurisdiction.” (Code Civ. Proc., § 1281.98(b)(1).) In the alternative, the employee or consumer may elect to continue with the arbitration proceeding, petition the court for an order

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