Kristin Fraser et al vs LG Electronics USA Inc et al

Case Number

22CV00171

Case Type

Hearing Date / Time

Wed, 11/22/2023 - 10:00

Nature of Proceedings

Motion: Leave to File a First Amended Complaint

Tentative Ruling

For Plaintiffs Kristin Fraser and Jason Lloyd: Brett Templeman, Benjamin L. Baumer

For Defendant/Cross-Complainant/Cross-Defendant LG Electronics U.S.A., INC.: William A. Bossen, Cameron W. Thomas

For Defendant/Cross-Complainant/Cross-Defendant Lowes’s Home Centers, LLC: Joan Cochran, Lisa Kralik Hansen, Jeff Bolson

For Defendant/Cross-Complainant/Cross-Defendant Inzunza Trucking Corp.: German A. Marcucci, Dominique Sicari

For Plaintiff USAA Casualty Insurance Company as Subrogee of Kristin Fraser: Kellie Terhyufen

Issue

Plaintiffs Kristin Fraser’s and Jason Lloyd’s Motion for Leave To File a First Amended Complaint

Ruling

The Motion is DENIED

Plaintiffs’ Motion

Filed 10/13/23; set hearing for 11/22/23; 44 pages; summarized; seeks leave to file a First Amended Complaint that will add supplemental allegations against all Defendants to support Lloyd’s claim for loss of consortium; the asserted claim for this amendment to their current pleading is to obtain relief for Lloyd’s loss of consortium damages; albeit he already has a loss for consortium claim made; in the proposed First Amended Complaint; Plaintiffs allege that Plaintiffs were lawfully married at all times relevant to the present dispute; Fraser suffered from smoke inhalation and severe emotional distress due to her proximity to the life-threatening fire; Fraser was subsequently diagnosed with post-traumatic stress disorder by her treating medical providers; continues to suffer from PTSD and related symptoms stemming from the fire; Fraser’s fire-related physical and emotional injuries have harmed and continue to harm Plaintiffs’ marital relationship resulting in loss of consortium damages for Lloyd; Lloyd’s loss of consortium is proximately related to the fire started by the tortious conduct of Defendants and seeks an award of damages sufficient to compensate Plaintiffs for the damages they have sustained generally, including, but not limited to, loss of consortium, damages for annoyance, disturbance, inconvenience and loss of quiet enjoyment of property and the resulting stress.

The alleged differences between the operative Complaint and the proposed First Amended Complaint are set forth on Exhibit 2 to the Declaration of Benjamin Baumer.  The supplemental allegations in the proposed First Amended Complaint directly relate to the facts already at issue in the present action and provide clarification of the nature of Plaintiffs’ claims against the Defendants.  Accordingly, this Court should permit Plaintiffs to file their proposed First Amended Complaint.

Lloyd contends there will be no prejudice to any party to the present action if this Court grants Plaintiffs leave to file this amended complaint; trial is not set to begin until January [3^rd] leaving sufficient time [sic] for Defendants to conduct discovery into this matter, including taking Lloyd’s deposition for the limited purpose of exploring the loss of consortium damages; that the Defendants have been on notice of this claim since August 2023.

Supported by the Declaration of Benjamin Baumer and Exhibits: summarized; he testifies that although Lloyd initially believed Fraser’s emotional condition would improve and their relationship would return to its prefire baseline, he underestimated the impact Fraser’s PTSD would have on their marital relationship; Lloyd decided to raise the issue of loss of consortium this year while responding to supplemental discovery; Lloyd, through his office, notified Defendants of his loss of consortium damages when he responded to supplemental interrogatories from Defendant LG on August 8, 2023 which were served on all Defendants; during Lloyd’s deposition, taken on September 14, 2023, he inquired if defense counsel, Joan Cochran, would stipulate to allow Plaintiffs to amend their complaint to add a loss of consortium claim considering the supplemental discovery responses raising the issue the month prior; invited Ms. Cochran to take advantage of Lloyd’s deposition to explore the loss of consortium damages; Ms. Cochran declined his invitation on both counts; specifically, Ms. Cochran commented that Lowe’s would oppose Plaintiffs’ motion to amend the complaint and would seek a further deposition to assess any loss of consortium damages should this Court grant such a motion.

Lloyd alleges that he has suffered and continues to suffer from loss of consortium damages due to his wife’s fire-related trauma and has a meritorious claim to seek such damages.  Plaintiffs seek this motion to amend their complaint to make clear the allegations underlying Lloyd’s loss of consortium claims against all Defendants; he does not believe Defendants will be prejudiced by the granting of this motion because Lloyd will submit to another deposition for the limited purpose of evaluating his loss of consortium damages.

Exhibit #1 is the proposed FAC for Damages and Exhibit #2 is of a comparison of the operative complaint and the proposed First Amended Complaint.  The comparison highlights all changes proposed in the First Amended Complaint.

To wit: As a result of the fire and Defendants’ conduct, Plaintiffs suffered personal injuries, general damages,

“. . . including loss of consortium, and special damages.

12. Fraser suffered from smoke inhalation and severe emotional distress due to her proximately to the life-threatening fire.  Due to the trauma of the fire, Fraser was subsequently diagnosed with post-traumatic stress disorder (“PTSD”) by her treating medical providers.  Fraser suffered from and continues to suffer from PTSD and related symptoms stemming from the fire.  Fraser’s fire-related physical and emotional injuries have harmed and continue to harm Plaintiffs’ marital relationship resulting in loss of consortium damages for Lloyd.   Lloyd’s loss of consortium is proximately related to the fire started by the tortious conduct of Defendants as set forth below.” 

Lowe’s Opposition

Lowe's arguments are as follows:

1.The motion is untimely without a valid reason for delay."

2. Lowe's is prejudiced because it will necessitate a second "deposition and increasing litigation costs."

3. Lloyd "provides no explanation for the change in circumstances necessitating the loss of consortium claim."

4. Lloyd "fails to set forth evidence or allegations to show a valid severe disruption to the marital relationship, as required under California law in support of loss of consortium."

5. Lloyd provides no "causal link to the January 21,2020 fire and the new claim for loss of consortium."

Plaintiffs’ Reply

Filed 11/15; 21 pages; summarized; only one of the three Defendants, Lowe's submitted an opposition to Plaintiffs' motion to amend the complaint to seek loss of consortium damages; their arguments lack merit to deprive Lloyd's substantial right to loss of consortium damages where his discovery responses have raised facts supporting this claim since July 2022 - he suffers from emotional harm daily and each night as his wife suffers from restless sleep since the fire. Lloyd delayed his loss of consortium claim because he had hoped that his wife's PTSD, and its concomitant impact on their relationship, would improve; it did not; Lloyd's counsel declared under penalty of perjury the reason for the delay in the motion, is that although Lloyd initially believed Kristin's emotional condition would improve and their relationship would return to its prefire baseline, he underestimated the impact Fraser's PTSD would have on their marital relationship; Lowe's would have learned this information and much more about the evolution of his loss of consortium injury if it had asked him about it at his deposition on September 14, 2023; Lowe's did not so inquire despite Lloyd's invitation to do so, preferring instead to oppose this Motion and claim prejudice for further discovery and litigation costs; Lloyd will submit to another deposition to ameliorate any claimed prejudice caused by his loss of consortium claim;  Lloyd is currently responding to written discovery propounded by Lowe's which will elaborate the bases of his loss of consortium claim; these discovery responses will mitigate Lowe's (self-imposed) claimed prejudice; Lloyd's emotional distress claims dovetail with his loss of consortium claim and have been known to Lowe's since the inception of the case; Lowe's suggestion that loss of consortium damages add new dimensions to the case that were not previously contemplated by Lowe's ignores the very evidence Lowe's includes in Lloyd's July 7, 2022 discovery response: He suffers from emotional harm daily and each night as his wife suffers from restless sleep since the fire; with this one discovery response, Lloyd provided (in July 2022) the evidence rebutting Lowe's arguments regarding a severe disruption to the marital relationship and a causal link to the January 21, 2020 fire.

Equally important, and alarmingly, Lowe's legal bases are undermined by nonexistent cases; they draw upon case law analyses that simply do not exist; the strong public policy supporting amendments to a complaint coupled with Lowe's discovery decisions which contribute to their claimed prejudice militate in favor of granting Plaintiff's motion.

In summary: the testimony illustrates a substantial injury to the marital relationship and a causal link to the fire sufficient to establish Lloyd's claim for loss of consortium; claims it is logical to infer that a diagnosis of PTSD and years of nightly restless sleep (both of which are related to the fire) will impact Mrs. Fraser's ability to emotionally connect with her husband; Lowe's attacks the weight of Lloyd's discovery responses by mischaracterizing cases and quoting opinions that do not exist.

The Court’s Conclusions

The Court will deny the request to amend the complaint.

The case is about a clothes dryer that Plaintiffs purchased that caused a fire to their home.

The case was filed in January 2022, two years after January 21, 2020, when Plaintiffs’ dryer caused the fire at Fraser and Lloyd’s home. This motion to now file an amendment to a 1/2022 complaint seeks to amend a loss of consortium claim almost 4 years after the fire to their home occurred; literally on the eve of trial, long scheduled to begin on 1/3/24, and will last until the end of January 2024.

This motion comes vastly too late in the proceeding; it is certainly prejudicial to all the Defendants and, for that matter, the Court and the administration of justice. The Court has, with rhythmic regularity, maintained the established trial date.

The Court acknowledges that pursuant to Code of Civil procedure section 473(a)(1), the Court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading. The Court acknowledges its discretion will usually be exercised liberally to permit amendment of the pleadings. (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) However, it is clear that the Court has discretion to deny leave to amend when the party seeking the amendment has been dilatory and the delay has prejudiced the opposing party. (See e.g. Hirsa v. Superior Court (1981) 118 Cal.App.3d 486 where the Court found the delay was neither untimely nor prejudicial and granted a Writ but acknowledged the law permits such conclusions by the Trial Court where the facts support it.)  

Discovery [except for experts] closes on 12/3/23 and, because of the Thanksgiving Holidays, leaves only 5 working days after the motion is set to be heard [the trial date is 1/3/24].

Moreover, the date-certain for the jury trial has long been set aside and is scheduled 42 days after the hearing date on Lloyd’s motion, although most of the actual working days are consumed by the Christmas Holidays. Counsel are in the final days of preparation for this case.

Trial documents including in limine motions trial briefs, jury instructions, and jury verdict forms from all the Defendants are due 12/27/23.

If the Court were to grant the request, the Trial Date would need to be continued and all the pretrial final discovery preparation, now being done, would need to be put on hold and re-calendared. Other cases already have been assigned trial dates after this case finishes in January for many months. Lloyd’s claim that this would involve one simple deposition of Lloyd is a vast oversimplification and clearly unrealistic in such complicated litigation with so many lawyers involved. Plaintiffs do not set the guidelines for what discovery the defense needs to do. Their argument that one deposition will resolve the discovery is their view, certainly not the Court’s view. The Court is not surprised that only Lowe’s filed an opposition; there are many reasons for that; the Court is not going to speculate why, in ruling on this motion.

Lloyd is solely responsible for problem; he has been very dilatory; he has procrastinated. His counsel reports in this motion that Lloyd delayed his loss of consortium claim because he had hoped that his wife's PTSD, and its concomitant impact on their relationship, would improve; it did not; Lloyd initially believed Kristin's emotional condition would improve and their relationship would return to its prefire baseline,[1] he underestimated the impact Kristin's PTSD would have on their marital relationship.

The Court notes that nowhere does Lloyd report the date when he first learned of any of these facts. He does not provide any date as to when he concluded he had underestimated the impact Kristin's PTSD would have on their marital relationship.

But any reasonable analysis of the timelines is that he should have known all these facts at least 2 years after the fire occurred in 2020 when he filed his complaint in 2022 and unquestionably long before [months if not years] his deposition on September 14, 2023.

Lloyd attempts to pass the blame on to Defendants by claiming Lowe's would have learned this information and much more about the evolution of his loss of consortium injury if it had asked him about it at his deposition on September 14, 2023. That is clearly an insufficient analysis required here. That’s because discovery starts with the underlying claims made and the defense has no obligation and certainly no duty to ferret out and cobble together the procrastination in reporting what was [apparently] long known by Plaintiffs.

The Court is painfully aware that Plaintiffs even now fail to disclose the date when Lloyd first discovered and then delayed his loss of consortium claim because he had hoped that Fraser's PTSD would improve.

This delay prejudices not only the Defense but the Court and the administration of justice and the Court’s time obligations to other cases who have not been scheduled for the time frame reserved for this case stating 1/3/24.

The fact is this Court has put in vast amounts of time getting the case ready for trial to begin. This has not been simple or easy. Counsel have involved the Court in very heavily controverted litigation. Lloyd has known since 6/20/23 that the trial date was firm, specific trial dates reserved, and that the Court was committed to maintain the trial dates.

The trial date was originally set for 9/6/23, but in June 2023 a 130-page ex parte motion was made by Lowe’s to continue the trial date because the parties desired to have the expert designations and exchange of expert reports due on July 18, 2023 to occur after the currently scheduled Settlement Conference; all parties, except Inzuzna, requested a 90-day continuance of the Trial Confirmation Conference and all associated deadlines to avoid the cost associated with preparing for the exchange of expert and reports until after the parties had a meaningful settlement conference.  The ex parte motion made by all the Parties, including Plaintiffs, was thorough; comprehensive discovery was being professionally and diligently managed; summary judgment motions were made and scheduled; a vast amount of time was being devoted to the case.

The Court noted that counsel for Fraser and Lloyd would not agree to allow the depositions of Plaintiffs to proceed until Plaintiffs’ counsel could take the deposition of the Person Most Qualified at Lowe’s. Unfortunately, the Person Most Qualified at Lowe’s was not available for deposition until late July due to pre-planned vacations that were scheduled. That position exacerbated the timing, too.

The Court explicitly said at the time of ruling on the ex parte motion on 6/20/23: “… no further continuances will be granted; do not stipulate to any further continuances and do not set an ex parte motion for a further continuance of the trial or the SJ Motion. The Court sets the following trial schedule and dates: The trial is continued to 1/3/24 at 11:30am for Pretrial Conference [all pretrial documents to be filed one week in advance (i.e. pretrial briefs; witness lists, exhibit lists; in limine motions; jury instructions [those that need to be modified will be modified]; jury verdict form); first jury panel comes over on 1/4/24 at 9 am and the second panel at 1:30pm on 1/4; we have agreed to reserve the following days for trial: 1/4; 1/5; 1/8; 1/9; 1/11; 1/12; 1/15 [holiday]; 1/16; 1/18; 1/19; 1/22; 1/23; 1/25; 1/26 = a Total of 13 trial days.” Essentially the entire month of January 2024

Thereafter on 8/9/23 the Court addressed, in an exhaustive and thorough decision; Lowe’s summary judgment motion; specifically, Lowe’s requests that the Court grant Summary Adjudication in its favor on the issue of the duty to defend raised in the respective cross-complaints of Lowe’s against Inzunza in this consolidated action; that motion was granted.

Thereafter on 11/1/23 Inzunza’s Motion for Summary Judgment/Summary Adjudication was denied in a 19-page decision.

Thereafter on 11/3/23, with all counsel participating, the case did not settle at the Mandatory Settlement Conference held in Judge Collen Sterne’s Court and the Trial date of 1/3/24 was confirmed. It appears from Judge Sterne’s Minute Oder that 11 lawyers participated.

Now at the very eve of trial, almost 2 years after the case was filed and 4 years after the fire, Plaintiffs want to amend their complaint to set out new facts related to their loss of consortium count. The Court declines to so order based upon the facts and the law.

[1] An apparent reference prior to 1/2020.