To Opposition To Motion

Reply

Cal. Super. - 2nd Dist.October 25, 2017

Q C W I R K L a w F i a t r e ev e en NO 0 3 A N Wn BR W R N D o R N N N N N N - ~ a = E E E S E T E E ve « S e Alan Fenton, Esq. #125279 Law Offices of Alan H. Fenton, APC 1334 Anacapa Street Santa Barbara, CA 93101 Telephone: (805) 568-1800 Facsimile: (805) 966-7006 Trevor M. Quirk, Esq. #241626 Quirk Law Firm, LLP 4222 Market Street, Suite C Ventura, CA 93003 Telephone: (805) 650-7778 - Facsimile: (866) 728-7721 Attorneys for Plaintiff, Ted Nicolas ELECTRONICALLY FILED Superior Court of California County of Santa Barbara Darrel E. Parker, Executive Officer 10/10/2018 3:59 PM By: Sarah Sisto, Deputy SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA BARBARA-ANACPA DIVISION TED NICOLAS, an individual, Plaintiff, v. ANALISA GAMEZ, an individual; ANA MARIA RODRIGUEZ, an individual, JUAN RODRIGUEZ, an individual, JUAN RODRIGUEZ AND ANA MARIA RODRIGUEZ, TRUSTEES OF THE RODRIGUEZ 2007 FAMILY TRUST DATED MAY 01, 2007 and DOES 1 through 10, and ROE Corporation 1 through 20, inclusive, Defendants, Case No.: 17CV04809 Unlimited Jurisdiction PLAINTIFF'S REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF'S MOTION TO AMEND Date: October 17,2018 Time: 9:30 a.m. Dept: 6 Judge: Hon. Pauline Maxwell PLAINTIFF, by and through his counsel, replies to Defendants’ Opposition in the order Defendants set forth their arguments: PLAINTIFF'S REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO AMEND Q C R E a w F i n a Li p Pi sh pt ep E hh in id Oo 0 3 O N Un BR W R e e N o o D N o N o , ® 3 5 6 8 B 3 8 2 8 3 % 5 3 s o s C = 1. Inexcusable Delay Argument : Defendants’ inexcusable delay argument and citation to Leader v. Industries of America, Ine. (sic) (2001) 89 Cal. App.4™ 603, 613 is dangerously wrong and misleading. If the Court takes Defendants’ argument and reliance upon Leader at face value and without actually reading the case, it would make bad law because Leader v. Health Industries of America, Inc. is a different fact pattern. In Leader, the trial court sustained Defendants’ demurrers with leave to amend. Leader v. Health Industries of America, Inc. supra at 492. Plaintiffs counsel then failed to timely file an amended complaint within the time specified by the Court. Jd. More than a month after the time specified by the Court, Plaintiff's counsel arrived at the status conference with a proposed amended pleading. /d. The trial Court advised Plaintiff’s to file a motion for leave to amend. Id. Plaintiff's counsel then filed a Motion to Amend. Defendants opposed Plaintiff's Motion to Amend and filed a Motion to Strike for “failure to amend within the time allowed after sustaining the demurrer.” Id., at 493 (emphasis added). The trial Court granted Defendants’ Motions. Here, Defendants failed to explain this factual distinction and instead dangerously cherry pick citations helpful to their case. As the Court can see, Leader may help Defendants in a different case, but not this one. Plaintiff’s counsel did not fail to amend Plaintiff's case within the time allowed after the Court sustained a demurrer. On the contrary, Plaintiff's new counsel file the instant Motion the same day he associated in this case. That is the opposite of inexcusable delay. The law is well settled- “it 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.” (Citations omitted, emphasis added.) 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 2 PLAINTIFF'S REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO AMEND Q QU IR K LA W Pi ka , te pa st or s bi d No 0 3 A N h h BR W N ) e s NV N N N N N N N - cl NE - B E H S = TE E S = T E ve a l 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. (internal citations omitted.)" (Morgan v. Superior Court (1959) 172 Cal. App.2d 527, 530.) 2. The “We Need More Discovery” Defense? Defendants most perplexing argument is the following: Granting Plaintiffs’ motion and permitting Plaintiff’s proposed additions to go forward would make it unlikely that this case will need to be continued to allow Defendants to conduct additional discovery and analyze their defense to the new claims Courts have denied leave to amend has been denied based on unwarranted additional discovery. (Opp., 5:9-15.) If Defendant was attempting to argue it needs to conduct more discovery, it, once again, misleads this Court by omitting salient facts. The following discovery has already occurred: Analisa Isabel Gamez (dog owner) deposed on April 27, 2018 Jose Gamez (homeowner) deposed on April 27, 2018; Charlene Cockrum (witness) deposed on May 18, 2018; Jean Staley (witness) deposed on May 11, 2018 Defendants have propounded and received answers to Form Interrogatories o Defendant have propounded and received answers to Request for Production of Documents e Defendants have propounded and received answers to Special Interrogatories In addition to omitting the above discovery that has already occurred, other than arguing it needs to “defend against the new legal theories”-Defendants do not advise this Court what actual discovery it needs to conduct. Perhaps, the most logical and likely explanation-there is no discovery left to do. 3 Ed PLAINTIFF'S REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO AMEND Q C U H R K a w F I R A L S1 7 om E CT 3 0 ao n NO 0 3 A N U n BR W N ) ee N O N D O N N N N D D ®» N d 9 E W N ~~ S 0 6 » d a a E O 0 2 3. The CRC 3.1324 Argument Defendants’ Hail Mary argument is the Court should ignore well established law and deny Plaintiff’s entire Motion because even though Plaintiff's counsel filed a Declaration addressing most of CRC 3.1324’s requirements the very same day he associated in on the case, the Declaration is “silent on when the facts giving rise to the amended allegations were discovered and says nothing about the reasons why the request for amendment was not made earlier.” Plaintiff's counsel thought some facts were self-evident. But, to be crystal clear (pun intended), if Plaintiff’s counsel could magically discover facts of cases he was not part of, he would be in a different business. Conclusion The real reason Defendants oppose Plaintiff's Motion to Amend is because now they are going to be held strictly liable for their pit bull biting off Plaintiff’s finger. Defendants overlooked this case, failed to take it seriously, showed up to CMADRESS 45 minutes late, without an insurance adjuster present, and are hoping this Court overlooks well established case law and denies Plaintiff the right to assert a meritorious cause of action. The statute of limitations on Plaintiff's claim has not even run. Plaintiff's Motion should be granted. Dated: October 9, 2018 QUIRK LAW By: Trevor M. Quirk, Esq. | - Attorney for Pldintiff TED NICOLAS 4 PLAINTIFF'S REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO AMEND Q QU AR K LA W FI RM , LL P em 253 . 2 080 me n NO 0 3 A N Un BR W N ee N O R D N N N N N : ® N o w E W N =~ S 0 5 » 9 a a E O D C B MEMORANDUM OF POINTS AND AUTHORITIES A. Facts & Procedural History This is a dog bite case. On April 25, 2017, Defendants’ dog attacked Plaintiff causing him personal injuries. Plaintiff is within the two-year statute of limitations. Plaintiff seeks leave of Court to file the proposed Second Amended Complaint (“SAC”) attached as Exhibit 1 to the Declaration of Trevor Quirk. The SAC cleans up Plaintiff s pleadings and adds Strict Liability Causes of Action. Plaintiff’s Motion should be granted as Plaintiff is within the statute of limitations and Defendants will suffer no prejudice. B. Statutory Authority for Leave to Amend Complaint A court, in its discretion, may allow an eRe: to any pleading in the furtherance of justice and on such terms and may be proper. Code Civ. Proc., § 473(a), 576. An amended Complaint is a pleading. Code Civ. Proc., § 422.10. An amendment may be allowed by the Court at any time before or after the commencement of trial. Code Civ. Proc., § 576. A Court’s power to allow pleading amendments should be liberally exercised so that cases may be decided on their merits. Desny v. Wilder, 46 Cal. 2d 715, 751 (1956). A court will o PLAINTIFF'S REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO AMEND Q R K La w F i r s t ti p AE rm T EE 5 00 wee s N D 0 0 O N WU BA W R em D o o o n N N N - -_ is ®» N N 9 R W m S o x O a a R O 0 3 very rarely be justified in refusing a party leave to amend so that he or she may properly present the case. Guidery v. Green, 95 Cal. 630, 633 (1892). C. Argument 1. Plaintiff’s Motion For Leave Should Be Granted As Plaintiffs Claim Is Within The Statute Of Limitations Period And Defendants Will Not Suffer Prejudice r To the extent the new causes of action create any additional imposition on Defendants, that imposition will result only from the substance of the claims pleaded against them, not from the fact that some of the claims they will face were not stated in the original Complaint filed herein. There is no authority stating that a motion for leave to amend a complaint could or should be denied simply because the amended complaint expands the scope of litigation. Indeed, the relevant case law indicates that if a plaintiff wants to expand the scope of a complaint to add additional legitimate legal theories, it is proper to do so if discovery is still open. Given the liberal allowance of amended pleadings, this Court should grant Plaintiff’s Motion CONCLUSION Based on the foregoing, Plaintiff respectfully requests this Court Grant Plaintiffs Motion and enter an order that the proposed Second Amended Complaint pleading attached to the Declaration of Trevor Quirk be granted. : QUIRK LAW FIRM, LLP Trevor M. Quik, Esq. Attorney for Plajnti Te Ted Nicolas Se Dated: August 23, 2018 6 PLAINTIFF'S REPLY TO DEFENDANT'S OPPOSITION, TO PLAINTIFF'S MOTION TO AMEND 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE Nicolas v Gamez,et al, SANTA BARBARA COUNTY, CASE: 17CV04809 I declare that I am over the age of 18 and not a party to this action. My business address is 4222 Market Street, Suite C, Ventura, California 93003. I served the following document(s): PLAINTIFF'S REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO AMEND on the interested parties in this action by placing a true and correct copy of each document thereof] enclosed in a sealed envelope, addressed as follows: , SEE SERVICE LIST [X] By Mail. I am readily familiar with the business’ practice for collection and processing of correspondence for mailing with the United States Postal Service. I know that the correspondence is deposited with the United States Postal Service on the same day thi declaration was executed in the ordinary course of business. I know that the envelope wa sealed and, with postage thereon fully prepaid, placed for collection and mailing on thi date, following ordinary business practices, in the United States mail at Ventura] California. [1] By Personal Service. I caused the above-referenced document(s) to be delivered by hand to the above addressee(s). [1] By Overnight Courier. I caused the above-referenced document(s) to be delivered to an overnight courier service for delivery to the above addressee(s). [X] By Facsimile Machine. On the date below, and by fax number (866) 728-7721, 1 caused the above-referenced document(s) to be transmitted to the interested parties at facsimile numbers referenced above. The facsimile transmission was reported as complete and without error. A copy of the transmission report which is attached to the original proof of service was properly issued by the transmitting machine. [1] By E-mail or Electronic Transmission. Based on an agreement of the parties to accept service by] e-mail or electronic transmission, I caused the documents to be sent to the persons at the e- mail address(es) listed above. I did not receive, within a reasonable time after the transmission, any indication that the transmission was unsuccessful. [X] (State) I declare under penalty of perjury under the laws of California that the above is true and correct. é Executed on October 10, 2018 at Ventura, California. IE /\~= Estchan B. Minero, Quirk Law Firm, LLP 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cynthia Sands, Esq. SKANE WILCOX, LLP. 1055 W. 7™ Street, Suite 1700 Los Angeles, CA 90017 Facsimile: (213) 452-1201 Attorney for Defendants SERVICE LIST Alan Fenton, Esq. Law Offices of Alan H. Fenton, APC 1334 Anacapa Street Santa Barbara, CA 93101 Facsimile: (805) 966-7006 Attorney for Plaintiff Send Result Report (} KYOCERA MFP 10/10/2018 15:44 [2LC_1000.010.001] [2K9_1100.002.0011 [2LC_7000.009.012] ETE Firmware Version 2LC_2F00.009.018 2014.12.05 Job No.: 298617 Total Time: 0°03'27" Page: 008 Complete Document: doc29861720181010154021 Alan Fenton, Esq. #125279 Law Offices of Alan H, Feuton, APC 211334 Anacape Street 3{| Santa Barbara, CA 93101 i Telephone: (8035) 568-1800 Facsimile: (805) 966-7006 5 Trevor M. Quirk, Esq, #241626 6)! Quirk Law Firm, LLP 71] 4222 Market Strect, Suite C Venture, CA 95003 8 Telephone: (805) 650-7778 - o|| Facsimile: (866) 728-7721 10{| Attorneys for Plaintiff, Ted Nicolas 1 SUPERIOR COURT OF THE STATE OF CALIPORNIA = FOR THE COUNTY OF SANTA BARBARA-ANACPA DIVISION 13 14 TED NICOLAS, an individual, Casa No.: 17CV04309 $ 1s | Unlimited Jurisdiction i 16 Plaintiff, i PLAINTIFF'SREPLY TO 17 vs DEFENDANT& OPPOSITION TO PLAINTIFTS MOTION TO AMEND 181 ANALISA GAMEZ, an individual; ANA 16|{ MARIA RODRIGUEZ, an individual, JUAN RODRIGUEZ, an ind{vidoal, JUAN Time: 9:30 a.m. 20)| RODRIGUEZ ANTY ANA MARTA Dept: [4 21|| RODRIGUEZ, TRUSTEES OF THE Judge: Hon. Pauline Maxwell RODRIGUEZ 2007 FAMILY TRUST DATED 22{|MAY 01, 2007 and DOES 1 through 10, and ROE Corporation 1 through 20, inclusive, Date: October 17,2018 . 23 24 Defendants, pl 26 , - PLAINTIFF, by and through his counsel, replies to Defendants’ Opposition in the order 27 . 28 Defendants sel forth their arguments: 1 PLAINTIFF'S REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO AMEND No. Date and Time Destination Times Type Result Resolution/ECH 001 10/10/18 15:40 12134521201 0°01'12" FAX 0K 200x100 Normal/On 0°02'15" FAX 0K 200x100 Normal/0n 002 10/10/18 15:42 18059667006 [ NA52201088 1