Enrique Garcia vs Michael Barnick, Sujittra Barnick

Case Number

23CV00450

Case Type

Hearing Date / Time

Wed, 11/29/2023 - 10:00

Nature of Proceedings

Motion for Leave to File an Amended Complaint; Motion to Seal; CMC

Tentative Ruling

Eric Wong, Taylor Ernest, Christopher Edgington for Plaintiff

Christopher Beeman; Andrew Murphy, Zachery Ross for Defendants

Issues

Motion for Leave to File an Amended Complaint

Motion to Seal

CMC

Rulings

1. The motion to file an Amended Complaint alleging a claim for punitive damages is granted; it shall be filed by 12/4/23.

2. The motion to seal is granted. Counsel to submit to the Court a proposed order which satisfies the requirements of Rule 2.550(d) and (e).

3. The Trial Date of 1/31/24 is continued to 5/29/24; the MSC set for 1/5/24 is continued to 5/2/24; another CMC is set for 3/27/24 at 8:30am.

Motion to file a 1^st AC

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’s 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.) The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified. (Douglas v. Superior Court (1989) 215 Cal.App.3d 155, 158.) This liberality permits amendments to the complaint at any stage of the proceedings, up to and including trial, absent prejudice to the adverse party. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) Absent prejudice, delay alone is not a ground for denial of leave to amend. (Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565.) 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. (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.)

Ordinarily, a judge will not consider the validity of the proposed amended pleading in deciding whether to grant leave to amend, since the opposing party will have the opportunity to attack the validity of the amended pleading after leave to amend is granted. (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.) Indeed, leave to amend should be denied only where the facts are not in dispute, and the nature of the Plaintiff’s [cross-complainant’s] claim is clear, but under substantive law, no liability exists, and no amendment would change the result. (Edwards v. Superior Court (2001) 93 Cal.App.4th 172, 180.)

This is a dog bite case, which is set for trial on 1/31/24. It is not a complicated case. Given all that the Defendants knew about the aggressive nature of their dog, and the need to keep him penned in when people were expected on the premises it does appear this claim should be permitted albeit the Court also understands the defense claim it appears late in the proceedings. Nevertheless, an opportunity to plead punitive damages should be granted. Whether Plaintiff can meet the enhanced burden of proof at trial remains an issue for the jury.

The Court has not ignored Defendants claim that they would be prejudiced, that this completely changes the nature of the case, and that Plaintiff unduly delayed in raising the issue; that much discovery is scheduled and yet to be completed; that Defendants’ request a continuance if the Court grants the Plaintiff’s request to amend.

The Court’s Conclusions

The Trial Date of 1/31/24 and the MSC set for 1/5/24 should be continued; another CMC should be set.

Motion to Seal

The exhibits which the Plaintiff seeks to seal are photographs of her injuries, in which she has a right to privacy with respect to her body and her medical condition. Her attorney has not submitted a proposed order for the application to seal. The sealing of Court records is governed by Rules 2.550 and 2.551. Rule 2.551 just sets forth the procedures for seeking an order to permit documents to be filed under seal and has already been followed. Rule 2.550 sets forth the standards that must be met for Court records to be filed under seal. Rule 2.550(d) provides:

The Court may order that a record be filed under seal only if it expressly finds facts that establish:

(1) There exists an overriding interest that overcomes the right of public access to the record;

(2) The overriding interest supports sealing the record;

(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;

(4) The proposed sealing is narrowly tailored; and,

(5) No less restrictive means exist to achieve the overriding interest.

Rule 2.550(e)(1) provides:

(1) An order sealing the record must:

(A) Specifically state the facts that support the findings; and,

(B) Direct the sealing of only those documents and pages, or, if reasonably practicable, portions of those documents and pages, that contain the material that needs to be placed under seal. All other portions of each document or page must be included in the public file.

The Court’s Conclusion

It is appropriate to order that the exhibits be filed under seal. Since Plaintiff’s attorney has not submitted a proposed order on the motion to file under seal, the Court should direct counsel to submit to the Court a proposed order which satisfies the requirements of Rule 2.550(d) and (e).

The CMC

Plaintiff in the CMCS reports via Taylor Ernst/Christopher D. Edgington: Plaintiff has sued for general negligence, premises liability, and strict liability (Civil Code §3342).  Plaintiff alleges she was injured from a dog bite by Defendant's dog; acknowledges trial date but NOT the MSC date. Defendants have been unwilling or unable to produce for deposition and have failed to provide contact information sufficient to permit service of a deposition subpoena, several witnesses who were present at the incident scene and were business associates of Defendant Michael Barnick, including witness Tim Lubes whose arrival reportedly permitted the animal to escape from the property’s open front gate. Plaintiff reserves the right to seek to exclude trial testimony by these business associate witnesses if they cannot be deposed. Plaintiff’s motion for leave to amend to add a prayer for punitive damages based on prior escapes, aggression, and attacks by this vicious animal is fully briefed and set for hearing on November 29, 2023.

Defendants in their CMCS reports via Andrew Murphy/Zachery Ross; acknowledges the trial date but NOT MSC date.

The Court’s Conclusion

This case is not complicated but it needs to be continued a short time. It will not be continued again; if either side needs the Court’s help in securing prompt discovery ask for it.