(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/personal injury case and its proceedings.)
DEFENDANTS ARE NOT PREJUDICED IF THE TRIAL COURT GRANTS PLAINTIFF’S MOTION TO AMEND ACCORDING TO PROOF AT TRIAL.
In exercising its broad discretion, the court is guided by whether the opposing party will be prejudiced by the amendment. City of Stanton v. Cox (1989) 207 Cal.App.3d 1557, 1563.
The Defendants will not be prejudiced if the trial court were to grant Plaintiff’s Motion to Amend According to Proof at Trial, as the Defendants have been placed on notice of Plaintiff’s elder abuse contentions as to both Dr. Green and Dr. Black as set forth in Plaintiff’s Complaint, First Amended Complaint, and Second Amended Complaint.
This case was filed on September 22, 2006, wherein the Plaintiff had asserted a cause of action against Dr. Green and Dr. Black for Elder Abuse and Willful Misconduct. Defendants’ Demurrer and Motion to Strike Plaintiff’s Second Amended Complaint was not heard and ruled upon until September 4, 2007. Therefore, the Defendants had one year to conduct discovery on Plaintiff’s contentions for Elder Abuse and Willful Misconduct.
Further, the Defendants have been provided all of Dr. Brown’s opinions regarding Dr. Green and Dr. Black, including his opinions on elder abuse relating to the two defendants.
The Plaintiffs have made their intentions clear to the Defendants immediately after the deposition of Dr. Brown that based on Dr. Brown’s deposition testimony, the Plaintiffs intended to request the Trial Court to amend Plaintiff’s operative complaint to include a cause of action for Elder Abuse and Willful Misconduct against Defendants Dr. Green and Dr. Black and to include a prayer for punitive damages according to proof.
Based on the above, the Defendants cannot claim that they have been sand bagged or would be prejudice in any way, as they have known from the initial filing that Plaintiffs had asserted a claim for Elder Abuse and Willful Misconduct against the Defendants and have been provided all facts, contentions, and expert testimony on this issue.
As there has not been a final judgment on Plaintiff’s cause of action for Elder Abuse and Willful Misconduct against Dr. Green and Dr. Black, and given the opinions of Plaintiff’s medical expert supporting a finding of Elder Abuse and Willful Misconduct, the Plaintiffs respectfully request that the trial court deny Defendants’ Motion in Limine No. 1 and allow the Plaintiff’s expert, Dr. Peter Brown, to testify on his opinions for Elder Abuse and Willful Misconduct against the Defendants.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.