Rick Asavis, et al. v. John Dougherty, et al.

Rick Asavis, et al. v. John Dougherty, et al., 21CVP-0002

Hearing: Motion for Leave to Amend

Date: May 20, 2026

On January 8, 2021, Plaintiffs Rick Asavis and Beverly Smith (Plaintiffs) filed a lawsuit against Defendants John Dougherty and Carolyn Dougherty, individually and as Successor co-Trustees of the Sylvia June Asavis Trust dated May 22, 2015, and Kim R. Kunz, individually and as Trustee of the Trust (collectively Defendants).

There is a related probate action (San Luis Obispo Superior Court Case No. 20PR-0152) filed May 27, 2020, by Plaintiffs herein against the same Defendants. As in the probate action, Plaintiffs allege that Defendants took advantage of the Decedent, Sylvia June Asavis (June), during the last months of her life.

On March 23, 2021, the Court overruled Defendants’ demurrer. Defendants filed an answer on April 2, 2021. Plaintiffs filed a verified First Amended Complaint without leave of court on March 29, 2022 (FAC). 1 On May 8, 2026, Defendants John and Carolyn Dougherty filed an answer to the FAC.

Trial is set to begin on August 4, 2026. The five-year deadline to bring the action to trial under Code of Civil Procedure section 583.310 is August 31, 2026.2 A motion for summary adjudication filed by Defendants John and Carolyn Dougherty against Plaintiff Beverly Smith is set for hearing on September 16, 2026.

1 The Court is unable to locate any stipulation or order allowing the filing of a FAC after defendants had already filed their answer. However, the parties have treated the FAC as the operative pleading throughout the action. Defendants John and Carolyn Dougherty filed an answer to the FAC on May 8, 2026. The Court notes that Defendant Kunz, however, has only filed a general denial to the original complaint, and has not filed an answer to the verified FAC. (Code Civ. Proc., § 431.30, subd. (d) [If the complaint is verified, the denial of the allegations shall be made positively or according to the information and belief of the defendant and a general denial is not sufficient].) 2 In February 2025, the parties entered into a written stipulation to continue the five-year statutory deadline to January 30, 2026, and the Court entered the order on June 27, 2025.

On October 22, 2025, the parties stipulated on the record in open court, entered into the minutes, to extend the five-year statute to June 30, 2026. On February 5, 2026, the parties again stipulated in writing to further extend the five-year deadline to August 31, 2026. The Court entered the order on February 9, 2026. (Code Civ. Proc., § 583.330.)

Plaintiffs now seek leave to file a proposed second amended complaint (SAC). No opposition to the motion was filed by Defendants John or Carolyn Dougherty.

No opposition was initially filed by Defendant Kunz in this action, despite filing an opposition to the motion for leave to amend in the related probate matter. Two days before the hearing, counsel for Defendant Kunz filed a declaration declaring that “[o]n May 7, 2026, I filed an Opposition to Petitioner's Notice of Motion and Motion to Leave to File Amended Petition, a file stamped copy of which is attached hereto. However, I inadvertently filed it under the related matter, Case No.: 20PR-0152 and not the above case number.” (Declaration of Christian Iversen, ¶ 2.)

The opposition attached to the declaration is the same as the one filed in the related matter and has the probate case number and discusses an amended petition, not complaint. The Court is not clear whether counsel meant to file the same opposition in both cases or just file it in the civil case. Regardless, the Court has now considered the opposition in relation to this motion.

Plaintiffs seek leave to amend the FAC to delete certain allegations (Mtn., p. 11, l. 8--p. 2, l. 18) and to include new facts (Mtn., p. 12, l. 21--p. 16, l. 3). Generally, Plaintiffs seek to allege new facts discovered via discovery and at the deposition of Defendant Kunz, including facts related to an alleged $95,280.50 balance still owing to June on a $350,000 Promissory Note, as well as facts relating to Defendant Kunz drafting June’s will and power of attorney and failing to advise her to seek legal advice regarding her trust, amongst others.

Defendant Kunz contends that the proposed SAC 3 sets forth what is in essence a new cause of action against him, claiming there is a balance owed to the Trust from Defendant Kunz of $95,280.50. Defendant Kunz contends that this claim was not alleged in the original petition or the FAP. Defendant Kunz admits that there was a loan for $350,000 made by June to himself, as well as his wife as co-trustees of the Oakview Gardens Trust. The note was secured by a deed of trust which was recorded as Document No.: 2008015196 on March 26, 2008. (Ex. A to Opp.) However, Defendant Kunz contends that the note was paid in full by January 25, 2019, on which date June signed a Deed of Full Reconveyance stating that all sums under the deed of trust had been paid. (Ex. B to Opp.) Defendant Kunz therefore contends there is no basis for the claim as to any amount due.

Defendant Kunz further contends he would be prejudiced by having to prepare for trial regarding these new allegations within this short period of time and requests that if leave to amend is granted, that the trial date be vacated. In addition, Defendant Kunz argues that the relevant statute of limitations has run (four years from January 25, 2019, under Code of Civil Procedure section 337), and that because this note was never pleaded previously, this claim does not relate back to the filing of the original petition. However, Defendant Kunz provides no authority that Code of Civil Procedure section 337 is the correct statute of limitations to apply to a claim for elder abuse, breach of fiduciary duties and negligence, nor does he provide authority discussing accrual of the claim.

3 As noted above, the opposition attached to counsel’s declaration discusses an amended petition, not complaint, but the Court addresses the complaint as that is at issue here.

Plaintiffs respond 4 that the claim is not barred under the discovery rule, as Plaintiffs only recently learned that Defendant Kunz was unable to provide any bank records to support payments made on the $95,280.50 of principal of the Promissory Note, and that Defendant Kunz claimed that bank records would indicate that he fully repaid the Note. Plaintiffs cross-checked bank records and found no evidence of the payments. (See Declarations of Jonas Bailey I.S.O. Mtn. (20PR-0152), Reply.) Moreover, the FAC alleges the $350,000 loan and the deed of trust. (FAC, ¶ 14.) The Court cannot say that this claim is necessarily barred by the statute of limitations.

As to prejudice, Kunz claims he will be prejudiced but fails to explain how. Kunz highlights no evidence he is lacking, and it appears any relevant evidence would be within his own possession, custody or control.

Leave to amend is liberally granted. (Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945; Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 939.) “[T]here is a strong policy in favor of liberal allowance of amendments.” (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 296; see also Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 488-89.)

“[I]t 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; see also Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) “[I]t 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.” (Morgan v. Superior Court of Cal. In and For Los Angeles County (1959) 172 Cal.App.2d 527, 530 [citations omitted].)

The Court finds leave to amend to be proper. Plaintiffs shall file and serve their SAC by May 22, 2026.

Plaintiffs shall inform the Court whether the SAC will be verified. Defendants shall file and serve their answers to the SAC by June 19, 2026.

4 Plaintiffs did not have the opportunity to file a reply in this case as the opposition was not timely filed. The Court incorporates arguments from their reply in the related case as the opposition was identical. The Court intends to grant their motion and they will suffer no prejudice from the inability to file a separate reply. 3