Case Number: BC586297 Hearing Date: June 26, 2019 Dept: 4A
Motion for Leave to File First Amended Complaint
Having considered the moving, opposing, and reply papers, the Court rules as follows.
BACKGROUND
On June 26, 2015, Plaintiff Eleanor K. Bryant (“Plaintiff”) filed a complaint against Defendant¿Complete P.T., Pool & Land Physical Therapy, Inc.¿(“Defendant”) alleging negligence for a slip and fall incident.
On March 12, 2019, the Court denied Plaintiff’s motion for leave to file a first amended complaint because Plaintiff’s counsel did not state when the facts giving rise to the amended allegations were discovered or why the request was not made earlier pursuant to California Rules of Court Rule 3.1324(b)(3) and (4), even though it appeared that Plaintiff died in 2017. The Court also noted that granting the motion after a long, unwarranted, and unexcused delay would present added cost and increased burden of discovery on Defendant.
On April 10, 2019, Plaintiff filed a motion for relief to file a first amended complaint.
Trial is set for August 23, 2019.
PARTY’S REQUEST
Plaintiff requests that the Court issue an order granting Plaintiff relief to file a first amended complaint pursuant to California Code of Civil Procedure section 473, subdivision (b).
LEGAL STANDARD
California Code of Civil Procedure section 473, subdivision (b) states in relevant part: “The court may, upon terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”
Section 473(b) also provides: “Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” This mandatory relief provision “acts as a ‘narrow exception to the discretionary relief provision for default judgments and dismissals.’” (Rodriguez v. Brill (2015) 234 Cal. App. 4th 715, 723). It does not provide mandatory relief for anything other than defaults, default judgments and dismissals. (Id.).
DISCUSSION
The Court initially notes that Plaintiff’s counsel does not seek to vacate a default, default judgment or dismissal entered against Plaintiff. Accordingly, mandatory relief is not available based simply on an affidavit of attorney fault. Instead, Plaintiff necessarily must seek permissive relief to file an amended complaint under Code of Civil Procedure section 473(b), which requires a showing that a “. . . proceeding [has been] taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Ibid. (emphasis added).)
Plaintiff argues that the Court should grant leave for Plaintiff to file a first amended complaint to allege a cause of action for wrongful death by detailing a series of mistakes and oversights by Plaintiff’s attorneys. First, Plaintiff argues that her initial attorney, Dmitry Aristov, failed to file a first amended complaint due to an unawareness of the relevant deadlines. (Motion, p. 5:9-5:11; Pedone Decl., ¶ 11.) Plaintiff also argues that one of her attorneys, Alexaner Escandari, became injured and was unable to engage in his daily professional duties so he could not file the amended complaint, and that subsequent counsel did not discover Mr. Aristov’s mistake until January 28, 2019. (Motion, p. 5:11-5:13; Pedone Decl., ¶¶ 5-6.) Plaintiff further argues that her subsequent attorney, Hyak Grigoryan, failed to explain the delay in filing the first amended complaint, resulting in the Court denying Plaintiff’s motion for leave to file a first amended complaint on March 12, 2019. (Motion, p. 5:13-5:18; Pedone Decl., ¶ 12.) Plaintiff claims that these facts constitute inadvertence and excusable neglect and justify discretionary relief from the failure to file an amended complaint. (Motion, p. 5:20-5:21.)
The Court finds that Plaintiff has not shown that the neglect that led to the failure to file an amended complaint – whether as a matter of right or with leave of Court — was excusable. Mr. Aristov’s neglect to file an amended complaint as a matter of right is inexcusable as there are no justifying circumstances cited by Plaintiff. Plaintiff relies on Elston v. City of Turlock (1985) 38 Cal.3d 227, 235 (superseded by statute on other grounds) for the proposition that an attorney is only required to show that he or she had no personal knowledge or notice of an applicable deadline for section 473 relief to be granted. (Motion, p. 5, fn. 1.) However, Plaintiff fails to show that Mr. Aristov did not have personal knowledge or notice of the deadline to file an amended complaint.
While the Court sympathizes with Mr. Escandari’s ailments, the medical problems of Plaintiff’s prior counsel do not excuse Mr. Grigoryan’s unjustified neglect in failing to explain the delay in connection with Plaintiff’s motion seeking leave to file the first amended complaint, and it was this deficiency – not Mr. Escandari’s medical ailments – that prompted the Court’s denial of Plaintiff’s motion for leave to file a first amended complaint on March 12, 2019. Additionally, Mr. Grigoryan’s failure to explain the delay in filing the first amended complaint in the motion denied on March 12, 2019 is inexcusable as there are no facts presented to the Court to justify this gap in his advocacy.
Plaintiff also argues that she had difficulties in obtaining necessary medical records, which were finally obtained in September 2018. (Reply, p. 1:19-1:24; Pedone Decl., ¶ 10.) This, Plaintiff argues, is why Plaintiff could not reasonably amend the complaint to add a wrongful death cause of action until the review of these medical records had been completed. (Ibid.). Again, even if the Court accepts the premise that the wrongful death action could not have been discovered without a review of the medical records, this does not account for the long delay in seeking leave to amend after September 2018 or the wholly inadequate motion to amend that was filed on Plaintiff’s behalf.
Assuming, arguendo, that the late records review justifies the late filing date for the motion to amend, the Court agrees with Defendant that Plaintiff is effectively asserting a motion for reconsideration of the Court’s March 2019 ruling on that prior motion. Code of Civil Procedure 473(b) “cannot be used to remedy attorney mistakes, such as the failure to provide sufficient evidence” in connection with a prior motion. (Wiz Tech. Inc. v. Coopers & Lybrand LLP (2003) 106 Cal. App. 4th 1, 17). But this is precisely what Plaintiff is arguing. She contends that, while the initial motion did not offer a sufficient excuse for the late filing, Plaintiff has now complied with the procedural requirements for a motion to amend a pleading and there would be no prejudice to Defendant if the motion was granted. (Motion, pp. 6:26-7:16; Reply, pp. 2:23-4:10.) Viewed as a motion for reconsideration, Plaintiff’s instant motion is untimely pursuant to California Code of Civil Procedure section 1008, subdivision (a), because it was filed nearly a month after the Court’s March 12, 2019 denial of the motion to amend. Because it was late, the Court declines to reconsider the merits of Plaintiff’s prior motion for leave to file an amended complaint.
Therefore, the motion is DENIED.
Plaintiff is ordered to give notice.