Metropolitan News-Enterprise


Tuesday, October 1, 2019


Page 3


Appeal Heard Where Plaintiff Voluntarily Dismissed Action With Prejudice

Dismissal Followed Ruling Denying Motion for Leave to File Amended Complaint


By a MetNews Staff Writer


The Court of Appeal for this district has taken the unusual action of vacating a voluntary dismissal of an action with prejudice, holding that the dismissal was not truly voluntary in light of the trial court having gutted the case through erroneous pretrial rulings.

In particular, Los Angeles Superior Court Judge Barbara M. Scheper struck a punitive-damage allegation, denying leave to amend the complaint until facts were adduced through discovery giving rise to such damages. She later disallowed the filing of an amended complaint because the plaintiff, Taimur Raza, failed to show why the allegations were left out of the initial complaint, saying that if they had been there, “I doubt I would have stricken the punitive damage claim.”

In an action against his neighbors, Daniel D. Spain and Michael H. Randall, filed March 5, 2013, Raza complained of water escaping from their property, intruding onto his, causing damage to his garage and a boundary wall. Scheper, in ruling on Aug. 27, 2013, on a demurrer, said:

“Defendants demur to the claim for punitive damages alleged in the complaint. The court will deem the demurrer a motion to strike and grant the motion for the reasons stated in the moving papers. The allegations supporting the claim for punitive damages are vague and conclusory.

“The court’s ruling is without prejudice to plaintiff bringing a motion for leave to amend at such time as discovery discloses facts which would support a claim for punitive damages.”

Leave to Amend

On Jan. 22, 2014, Raza sought leave to file an amended complaint. In it, he alleged that the defendants’ “failure to address the water intrusion problem is part of a pattern of conduct towards plaintiff” that was “hostile, discriminatory and threatening.”

That pattern, he asserted, included “[h]urling insults at plaintiff based on race, religion and national origin including but not limited to asserting plaintiff was a foreigner from ‘the sandbox’ and had no right to wear an American military uniform,” “[p]oisoning plaintiff’s two pet dogs, one of which was a young puppy, resulting in harm to one dog and the death of the puppy, and “[t]aunting plaintiff the day after the poisoning of the dogs by stating that defendant Spain ‘hopes’ plaintiff ‘realizes who he is messing with.’ ”

Raza further pled that in light of the conduct, he “was driven to sell his home at a discount” and has suffered “mental anguish, humiliation, fear and anxiety,” again seeking punitive damages.

Motion Denied

The motion for leave to amend was denied by Scheper on Feb. 28, 2014 based on the plaintiff’s failure to include the allegations as to oppression in the March 5, 2013 complaint. She said Raza failed to show “when the facts that give rise to the proposed new claims were discovered.”

Except for the allegation as to the poisoning of the dogs, she said, he apparently knew of the purported facts from the outset and that, with the trial date approaching, the defendants would be prejudiced by a last-minute addition of issues.

Raza on April 3, 2014, brought a second complaint against Spain and Randall—Raza II—based on the disallowed allegations in his proposed amended complaint in Raza I. Scheper denied motions to consolidate the two actions and granted a motion in limine barring any mention in Raza II of the water damage.

On Sept. 21, 2016, Raza filed a request for dismissal with prejudice as to the first action. A jury found against Raza—now deceased—in the second action.

Bendix’s Opinion

Justice Helen Bendix wrote for Div. One in ordering that the dismissal of the initial action be vacated and the order denying leave to amend be reversed. In a separate opinion, she wrote for the panel in reversing a judgment in favor of the defendants in the second action because Scheper barred Raza from alluding to the allegations of the escaped water contained in the dismissed action.

Both opinions were filed Friday and neither was certified for publication.

In allowing an appeal in Raza I—which was continued after Raza’s death by his mother, as his successor—Bendix said that decisional law permits an appeal following a voluntary dismissal where the purpose is to expedite scrutiny of an adverse ruling.

For that proposition, she cited the 2001 Court of Appeal decision in Stewart v. Colonial Western Agency, Inc. from this district’s Div. Four. There a case was settled and a dismissal was entered; the defendant was allowed to appeal a $2,400 sanction based on a stipulation in the settlement agreement that the right to appeal that matter was reserved.

Justice Daniel A. Curry (now deceased) said in that opinion:

“[A]ppellate courts treat a voluntary dismissal with prejudice as an appealable order if it was entered after an adverse ruling by the trial court in order to expedite an appeal of the ruling.”

 Errors Found

Bendix wrote:

“The trial court abused its discretion by not granting immediate leave to amend. Nothing about the complaint indicated it was ‘incapable of amendment.’…The trial court further erred by stating that it would allow amendment only if plaintiff provided supporting facts obtained through discovery.”

She continued:

“Having stated its ruling was without prejudice to plaintiff bringing a later motion to amend, the trial court compounded its errors by ruling against plaintiff when he brought that later motion. The trial court found that plaintiff was aware of most of the new allegations at the time he filed his original complaint and questioned why plaintiff had not asserted them sooner. The trial court had denied plaintiff that opportunity, however, by not allowing immediate amendment of the complaint following the grant of the motion to strike, and stating that it would only permit amendment based on facts obtained through discovery. It was an abuse of discretion to deny leave to amend based on delay caused by the trial court’s own orders. We reject defendants’ contention that plaintiff did not adequately explain why he did not assert the new allegations and claims sooner.

“The trial court’s errors prejudiced plaintiff, who, at minimum, was prevented from asserting a claim for punitive damages, despite raising that claim in his complaint and twice requesting leave to amend to provide supporting allegations, first in opposition to defendants’ demurrer, then in a separate motion seeking leave to amend.”

The case is Raza v. Spain, B278096.

Raza II

In explaining the reversal of the defense judgment in Raza II, Bendix wrote:

“In the instant appeal, plaintiff challenges the trial court’s grant of defendants’ motion in limine precluding him from introducing evidence relevant to the claims he dismissed in Raza I, namely that defendants caused water to intrude into his property and damage his garage. We agree the trial court erred. Although plaintiff did not seek damages for his garage in Raza II, the garage allegations were relevant to establish defendants’ purported pattern of harassing and threatening conduct towards plaintiff. Plaintiff additionally was prejudiced when, despite the grant of their motion in limine, defendants themselves raised an issue from Raza I when cross-examining plaintiff, then called an expert to discredit plaintiff on that issue to undercut his credibility.”

That case is Raza v. Spain, B290679.

Alice M. Graham of Marina Del Rey represented Raza and, after his death, Hali Jilani and the Estate of Raza.

Attorneys on appeal for Spain and Randall were James T. Catlow of the downtown Los Angeles firm of Doherty & Catlow and Susan Rousier of the El Segundo firm of Paul F. Sullivan & Associates.


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