LESLIE FALCON et al., Plaintiffs and Appellants, v. LONG BEACH GENETICS, INC., et al., Defendants and Respondents.
No. D062807
Fourth Dist., Div. One.
Mar. 21, 2014.
224 Cal. App. 4th 1263
Admire & Associates and Duane A. Admire for Plaintiffs and Appellants Leslie Falcon and Minor.
JoEllen Plaskett for Plaintiff and Appellant Michael Patterson.
Higgs, Fletcher & Mack, William M. Low; Ungaretti & Harris and Timothy E. Horton for Defendants and Respondents.
OPINION
O‘ROURKE, J.—Plaintiffs and appellants Leslie Falcon, her minor daughter (minor; at times collectively the Falcons) and Michael Patterson appeal from a summary judgment in favor of defendants and respondents Long Beach Genetics, Inc. (LBG), Esoterix, Inc. (Esoterix), and Laboratory Corporation of America (LabCorp) on plaintiffs’ second amended complaint for negligence arising out of an erroneous deoxyribonucleic acid (DNA) test result used to determine minor‘s paternity. Plaintiffs advance several arguments as to why the trial court erred in granting summary judgment, but we need only decide whether the
FACTUAL AND PROCEDURAL BACKGROUND
We set out the undisputed material facts as ascertained from the parties’ moving and opposing papers (see Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 327 [100 Cal.Rptr.2d 352, 8 P.3d 1089]) and state other facts and draw inferences from them in the light most favorable to plaintiffs. (
To further complicate review, plaintiffs make numerous factual assertions in their briefs without record citation. Accordingly, our review of the facts is also hindered by their failure to provide citations to the record that comply with
LBG is a laboratory that conducted DNA paternity testing until 2005, when it was acquired by LabCorp. In the fall of 2003, Leslie Falcon and Patterson scheduled a free paternity test with the County of San Diego (County) to confirm that minor was Patterson‘s child. On September 26, 2003,2 County commenced a paternity proceeding in the San Diego County Superior Court
In November 2003, LBG issued test results excluding Patterson as minor‘s biological father and mailed it to both parents. The test results were accompanied by a declaration of LBG custodian of records Christine D‘Autremonte, certifying the records. On January 30, 2004, County sent Patterson a letter informing him that the blood test results revealed he was not minor‘s father. The test results, however, were erroneous, as they were based on the DNA markers of someone other than Patterson. Leslie Falcon did not discover the error until February 2008, in connection with her application to reopen minor‘s paternity case.
In November 2009, the Falcons sued defendants for negligence. The Judicial Council form complaint alleged that defendants “negligently concluded and thereafter via declaration testimony informed the San Diego Superior Court and Plaintiffs—that through their DNA tests, which were 99.99 [percent] accurate—[minor] was not the daughter of her actual father Michael Patterson,” causing damage in November 2003. The Falcons further alleged they “did not suspect, nor were they able to discover this error until the Defendant conducted further DNA tests in February 2008” and that the negligence “caused and continues to cause both economic and non-economic damages to the Plaintiffs.” Patterson was added as a plaintiff in July 2010.
Defendants moved for summary judgment and alternatively summary adjudication of issues. They argued (1) plaintiffs’ claims were barred by the litigation privilege; (2) defendants owed no duty to plaintiffs; and (3) the complaint was barred by the one-year statute of limitations under the Medical Injury Compensation Reform Act (MICRA)3 and thus failed to state facts sufficient to constitute a cause of action. As to Patterson, defendants argued
Plaintiffs opposed the motion, filing separate but largely identical papers. In part, plaintiffs argued the section 47(b) privilege did not apply to LBG‘s negligent performance of the first paternity test and defendants owed a legal duty to plaintiffs as intended third party beneficiaries of the contract between County and LBG.4 Neither Patterson nor Leslie Falcon submitted a declaration in support of the motion. Instead, in their separate statements they cited evidence submitted by defendants, and later supplemented their showing with defendants’ responses to requests for admissions. Plaintiffs lodged foreign authorities including Berman v. Laboratory Corp. of America (2011) 2011 OK 106 [268 P.3d 68] (Berman), in which the Oklahoma Supreme Court held a plaintiff‘s negligence claim was not barred by an Oklahoma absolute privilege for communications made during or preliminary to a judicial proceeding, and LabCorp owed that plaintiff, a parent seeking to prove her child‘s paternity, a duty to conduct accurate DNA testing ordered by the Oklahoma Department of Human Services for child support purposes. (Id., 268 P.3d at pp. 71-72.)
At about the same time, Patterson applied ex parte to file a third amendment to the complaint to add a claim for punitive damages. He sought to allege that LabCorp had retested Falcon and Patterson‘s DNA in 2008 at the request of the San Diego County Department of Child Support Services (DCSS), but did not inform Falcon or Patterson until 2010, and further that LabCorp did not integrate LBG‘s data after its merger with LBG, which caused LabCorp‘s cross-referencing system to fail in 2007 to recognize the 2003 testing error. Patterson sought to allege that these failures constituted gross negligence warranting punitive damages. The trial court set a hearing on the motion for March 2, 2012.
Plaintiffs thereafter neglected to timely file their motion for leave to amend, and Patterson again sought ex parte an order shortening time to file the motion. In the amended pleading, Patterson additionally sought to challenge LBG‘s assertion it was a licensed health care provider for purposes of applying the MICRA statute of limitations, claiming LBG withheld evidence
At oral argument on defendants’ summary judgment motion, counsel argued extensively about the existence of litigation, the parties’ knowledge of County‘s paternity proceeding, and their motivation for going to County for blood testing. The court asked counsel to focus on the connection between the DNA test and County‘s proceeding, and Patterson‘s counsel represented that the paternity test was a free service offered by County performed without any reference to Medi-Cal or any paternity action. When pressed, however, to identify the record evidence of that assertion, counsel could not, and eventually offered to supplement her showing with materials from DCSS. The Falcons’ counsel asked the court to allow them to amend the complaint “to represent the facts, that the negligent gravamen of this, or the gravamen is the negligent conduct, not the noncommunicative conduct [sic].” Plaintiffs also sought to amend the complaint to allege that defendants had conducted a retest in 2007 but did not inform Patterson until 2010, breaching its contract with County and violating
Ruling Berman, supra, 268 P.3d 68 was directly at odds with California authority, specifically Ramalingam v. Thompson (2007) 151 Cal.App.4th 491 [60 Cal.Rptr.3d 11] and Gootee v. Lightner (1990) 224 Cal.App.3d 587 [274 Cal.Rptr. 697], the trial court granted summary judgment in defendants’ favor. Taking judicial notice of the existence of County‘s proceeding, the court ruled the gravamen of plaintiffs’ complaint was communicative conduct barred by the section 47(b) privilege; that LBG performed the test in connection with the paternity proceedings initiated by County and plaintiffs’ alleged injuries arose from the laboratory‘s communication of the test results to the parties in that action. The court denied plaintiffs’ request for leave to amend the complaint to allege that LBG breached its duty to notify plaintiffs of its 2008 retest results under
I. Summary Judgment Principles and Standard of Review
“Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (
On appeal, we review the record and the trial court‘s decision de novo, liberally construing the evidence in support of the plaintiffs as the opposing parties and resolving doubts concerning the evidence in their favor. (Coral Construction, Inc. v. City and County of San Francisco (2010) 50 Cal.4th 315, 336 [113 Cal.Rptr.3d 279, 235 P.3d 947]; State of California v. Allstate Ins. Co. (2009) 45 Cal.4th 1008, 1017 [90 Cal.Rptr.3d 1, 201 P.3d 1147].) Despite this review in plaintiffs’ favor, “plaintiff‘s evidence remains subject to careful scrutiny. [Citation.] We can find a triable issue of material fact ‘if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.‘” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433 [60 Cal.Rptr.3d 359]; see Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163 [80 Cal.Rptr.2d 66] [“responsive evidence that gives rise to no more than mere speculation cannot be regarded as substantial, and is insufficient to establish a triable issue of material fact“].)
II. The Section 47(b) Privilege Bars Plaintiffs’ Negligence Claim
A. The Section 47(b) Privilege
The section 47(b) privilege “provides that a ‘publication or broadcast’ made as part of a ‘judicial proceeding’ is privileged.” (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241 [63 Cal.Rptr.3d 398, 163 P.3d 89].) “‘The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that [has] some connection or logical relation to the action.‘” [Citation.] The privilege ‘is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards.‘” (Action Apartment, at p. 1241, quoting Silberg v. Anderson (1990) 50 Cal.3d 205, 212 [266 Cal.Rptr. 638, 786 P.2d 365]; see Hawran v. Hixson (2012) 209 Cal.App.4th 256, 282 [147 Cal.Rptr.3d 88]; Komarova v. National Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324, 336 [95 Cal.Rptr.3d 880] [communications with some relation to an anticipated lawsuit are within the privilege].) And judicial or quasi-judicial proceedings are “‘defined broadly to include “all kinds of truth-seeking proceedings,” including administrative, legislative and other official proceedings.‘” (Wang v. Heck (2012) 203 Cal.App.4th 677, 684 [137 Cal.Rptr.3d 332].) “[T]he communication must be ‘in furtherance of the objects’ of the proceeding, which is ‘part of the requirement that the communication be connected with, or have some logical relation to, the [proceeding], i.e., that it not be extraneous to the [proceeding].‘” (Hawran, at pp. 282-283, quoting Action Apartment, at p. 1251.)
The litigation privilege is absolute and broadly applied regardless of malice. (Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 955 [56 Cal.Rptr.3d 477, 154 P.3d 1003].) Its purposes are to “‘afford litigants and witnesses free access to the courts without fear of being harassed subsequently by derivative tort actions, to encourage open channels of communication and zealous advocacy, to promote complete and truthful testimony, to give finality to judgments and to avoid unending litigation.‘” (Ibid.) It promotes effective judicial proceedings by encouraging full communication with the courts. (Ibid.) Accordingly, doubts as to whether the privilege applies are resolved in its favor. (Hawran v. Hixson, supra, 209 Cal.App.4th at p. 283; Wang v. Heck, supra, 203 Cal.App.4th at p. 684.)
Despite its broad and absolute nature, the litigation privilege only protects publications and communications. Thus, “a threshold issue in determining the applicability of the privilege is whether the defendant‘s conduct was communicative or noncommunicative. . . . The distinction between communicative and noncommunicative conduct hinges on the gravamen of the action. That is, the key in determining whether the privilege applies is whether the injury allegedly resulted from an act that was communicative in its essential nature.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1058 [39 Cal.Rptr.3d 516, 128 P.3d 713], citations omitted; see Action Apartment Assn., Inc. v. City of Santa Monica, supra, 41 Cal.4th at pp. 1248–1249.) And, if the gravamen of the action is based on a communicative act, “the litigation
B. Challenges to the Elements of the Section 47(b) Privilege
Patterson contends these facts do not meet the elements of the section 47(b) privilege, that is, the existence of an underlying judicial or quasi-judicial proceeding, or the necessary communication made by litigants or other participants authorized by law, to achieve the objects of the litigation, having some connection or logical relation to the action. (See Action Apartment Assn., Inc. v. City of Santa Monica, supra, 41 Cal.4th at p. 1241.) Specifically, Patterson maintains there is no evidence of any dispute, or that a “true case with appropriate pleadings were [sic] filed prior to testing,” and there is no evidence he and Falcon had initiated the case or were participating in litigation. He suggests plaintiffs did not need to engage in a paternity fight because they were both “engaged and happy” custodial parents, and the DNA test had no connection or logical relation to the action because he was not refusing to support his child.
Falcon includes similar arguments in her reply brief on appeal. In part, relying on County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215 [113 Cal.Rptr.3d 147], a case not involving the section 47(b) privilege, she argues service of summons and complaint of County‘s action was a prerequisite to any determination that plaintiffs were litigants in that action, and there was no personal jurisdiction over the parties, violating their rights to due process. She also argues the plaintiffs underwent testing of their own “free will” and did not respond to any court order or ask to be involved in any litigation.
These contentions are meritless. The trial court properly took judicial notice of the existence and pendency of County‘s superior court proceeding against Patterson (
C. Plaintiffs Allege Their Injury Resulted from the Defendant‘s Communication of the Erroneous Test Results to County
Characterizing the trial court‘s decision as inequitable, illogical, and contrary to the Legislature‘s intent in enacting
As stated above, plaintiffs squarely allege the basis for negligence liability is that defendants “negligently concluded and thereafter via declaration testimony informed the San Diego Superior Court and Plaintiffs . . . through their DNA tests . . . [that minor] was not the daughter of her actual father Michael Patterson . . . .” (Italics added.) Plaintiffs allege that this negligence caused damage in November 2003. Plaintiffs’ allegations demonstrate their injuries “resulted from an act that was communicative in its essential nature.” (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1058.) Accordingly, the litigation privilege extends not only to defendants’ communication of the genetic test results, but the noncommunicative act of the DNA testing itself that is necessarily related to the communication. (Id. at p. 1065.)
Under settled summary judgment standards, we are limited to assessing those theories alleged in the plaintiffs’ pleadings. (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250 [91 Cal.Rptr.3d 532, 203 P.3d 1127] [the materiality of a disputed fact is measured by the pleadings, which set the boundaries of the issues to be resolved at summary judgment]; County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 332 [40 Cal.Rptr.3d 313]; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253-1259 & fn. 7 [78 Cal.Rptr.3d 372]; Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648 [32 Cal.Rptr.3d 266].) “‘The burden of a defendant moving for summary judgment only requires that he or she negate plaintiff‘s theories of liability as alleged in the complaint. A “moving party need not ‘. . . refute liability on some theoretical possibility not included in the pleadings.’ [Citation.]” ’ ” ‘[A] motion for summary judgment must be directed to the issues raised by the pleadings. The [papers] filed in response to a defendant‘s motion for summary judgment may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings.’ ” ’ (County of Santa Clara, at pp. 332-333.) “‘The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues: the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.’ ” (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381 [282 Cal.Rptr. 508].) “[A] plaintiff wishing ‘to rely upon unpleaded theories to defeat summary judgment’ must move to amend the complaint before the hearing.” (Oakland Raiders, at p. 648; see County of Santa Clara, at p. 333; Laabs. v. City of Victorville, at p. 1257.)
Even if plaintiffs had specifically alleged that the basis for their claim was defendants’ negligent testing, and not the communication of the test results via D‘Autremonte‘s declaration, our conclusion would not change. The summary judgment evidence is undisputed that the test results were communicated to County and the parties for the purpose of County‘s paternity proceeding. Thus, defendants’ testing and its communication to County are necessarily linked, and the injury would not have occurred but for communication of the results in the legal proceeding.
We are not convinced by plaintiffs’ arguments otherwise. The distinction between an expert‘s opinion testimony, which plaintiffs assert is subject to the privilege, and underlying negligently performed scientific testing, which assertedly should fall outside the privilege, is simply not recognized by California authorities applying the section 47(b) privilege in analogous contexts. For example, in Block v. Sacramento Clinical Labs, Inc. (1982) 131 Cal.App.3d 386 [182 Cal.Rptr. 438], the Court of Appeal held the litigation privilege applied to an action for professional negligence against a toxicologist for a negligently performed blood analysis provided to the district attorney to determine whether criminal charges were warranted. (Id. at pp. 387-388.) The toxicologist had erred in his calculations of the amount of baby aspirin a baby would have ingested based on the salicylate concentration in its blood. (Id. at p. 388.) The plaintiff argued the toxicologist was liable if his lack of ordinary care caused foreseeable injury to her economic interests: “‘[O]nce [the defendant] had made his erroneous preliminary determination that the child had ingested a large number of aspirins immediately prior to her death, his purpose was to provide that information to the District Attorney and to the court so that they would rely thereon.’ ” (Id. at p. 392.) The plaintiff argued there was “‘no question‘” her injuries were “‘clearly foreseeable and in fact foreseen’ ” by the defendant. (Ibid.)
The Court of Appeal held this theory “place[d] [the defendant‘s] communication of the report to the district attorney and, later, his testimony in the criminal proceeding, at the heart of the claim of liability. . . . Whether the matter be characterized as the publication of a negligently prepared report or the negligent publication of the report, plaintiff finds the duty upon which her theory of negligence relies in the foreseeable consequences of publication of the report in or related to the judicial proceeding.” (Block v. Sacramento Clinical Labs, Inc., supra, 131 Cal.App.3d at pp. 392-393, fn. omitted.) Any other approach would “substantially defeat the purpose of [the] privilege.” (Id. at p. 394.) The court observed that the plaintiff at oral argument sought to escape the privilege by characterizing the action as arising out of the defendant‘s negligent conduct alone. (Id. at p. 393, fn. 10.) It concluded, however, that under any cognizable theory of duty, “the negligent calculation formed the basis of [the defendant‘s] communication and was privileged.”
More recently, in Wang v. Heck, supra, 203 Cal.App.4th 677, the appellate court affirmed a summary judgment on grounds the section 47(b) privilege barred a plaintiff motorist‘s negligence claim against a neurologist who had filled out a medical evaluation form for a patient that was relied upon by the Department of Motor Vehicles (DMV) to reinstate the patient‘s license. (Wang, at pp. 679, 681.) Like plaintiffs in the present case, the plaintiff in Wang sought to avoid the privilege‘s application by arguing the negligence was not the completion of the DMV medical evaluation form, but the neurologist‘s treatment of the patient before that time and her failure to warn the patient not to drive. (Id. at pp. 685, 686.) The Court of Appeal rejected that argument. It reasoned none of the plaintiff‘s causes of action could stand without relying on the neurologist‘s completion of the DMV medical evaluation form. (Id. at p. 684.) It pointed out that the neurologist was a participant authorized by law to complete the form, and “[a]lthough [the neurologist] did not complete the DMV evaluation form for purposes of testifying in judicial proceedings,” the form was used in a “‘truth-seeking proceeding,‘” that is, it was used in the DMV administrative hearing in order for the DMV hearing officer to determine whether to reinstate the patient‘s license. (Id. at p. 685.) Further, the form was completed to achieve the object of the DMV hearing: to determine the patient‘s fitness for driving. (Ibid.) The court stated: “[I]t is clear that [the neurologist‘s] conduct prior to completing the . . . DMV evaluation form was the basis of her communication in completing the form. Although appellants attempt to characterize their claim as medical negligence by failing to warn [the patient] not to drive, the basis of their complaint is [the neurologist‘s] statement on the DMV medical evaluation form that [the patient] could drive safely.” (Id. at p. 686.) In concluding the gravamen of the plaintiff‘s action was communicative, the Wang court‘s focus was not on the neurologist‘s testimonial function at a judicial proceeding, but the use of the neurologist‘s report in connection with that proceeding. As the court in Wang recognized (id. at pp. 686-687), our high court emphasizes the importance of the litigation privilege‘s absolute protection of access to the courts, even despite its costs: “‘[It] is desirable to create an absolute privilege . . . not because we desire to protect the shady practitioner, but because we do not want the honest one to have to be concerned with [subsequent derivative] actions . . . .‘” [Citation.] “[W]hen there is a good faith intention to bring a suit, even malicious publications ‘are protected as
Here, as in the above cases, the defendants’ DNA test was prepared for the purpose of determining minor‘s paternity in connection with County‘s paternity proceeding, and transmitted to and used by County for that purpose. This result does not, as plaintiffs argue, “afford[] absolute immunity to DNA paternity testers . . . .” (Some capitalization omitted.) It protects only those persons or entities conducting tests in connection with or contemplation of litigation within the meaning of the section 47(b) privilege, a result compelled by the breadth of the privilege and its purposes. In reaching our conclusion, we necessarily decline plaintiffs’ invitation to adopt the reasoning of the Oklahoma Supreme Court in Berman, supra, 268 P.3d 68.7
Because the conduct relied upon by plaintiffs falls within the section 47(b) privilege, we need not address plaintiffs’ arguments concerning whether defendants owed them a duty of care.
III. Patterson‘s Due Process Argument
Patterson contends he and Falcon were denied their federal due process rights under the Fourteenth Amendment of the United States Constitution because they were never served with the summons and complaint pertaining to County‘s paternity proceeding, and were never apprised of the pendency of the action. This argument fails for several reasons.
First, such a theory was not pleaded in the operative complaint. The sole cause of action in plaintiffs’ second amended complaint is general negligence,
Second, plaintiffs do not provide record citations to support the assertions made in their opening appellate briefs concerning service of any summons and complaint or their lack of knowledge of County‘s pending paternity proceeding.8 Third, plaintiffs’ opposing summary judgment evidence cited in the trial court—namely, the declaration of LBG‘s general manager and laboratory director John Taddie, Ph.D., the request for dismissal of County‘s 2003 proceeding, and Patterson‘s stipulation regarding the DNA parentage test and order thereon—do not provide evidentiary support for plaintiffs’ factual statements.
Finally, the summary judgment record establishes that on October 30, 2003, Patterson executed a stipulation to undergo DNA testing, which was filed in County‘s proceeding on November 5, 2003. While a court must have personal jurisdiction over parties (see County of San Diego v. Gorham, supra, 186 Cal.App.4th at pp. 1226-1227), it is long settled that a party‘s consent is a proper basis to confer personal jurisdiction over the party (see In re Vanessa Q. (2010) 187 Cal.App.4th 128, 135 [114 Cal.Rptr.3d 294]). In short, Patterson‘s execution of the stipulation constituted a general appearance in the matter, which operated as a consent to jurisdiction of his person. (See
The Falcons contend that even if the section 47(b) privilege applies, the trial court reversibly erred by denying their oral motion for leave to amend during the summary judgment hearing. They maintain plaintiffs had timely sought leave to amend in 2011 and 2012 to allege additional claims “stemming from the respondent‘s subsequent cover up of its negligence.” Patterson similarly claims plaintiffs sought leave to amend in January 2012 to include allegations of negligent acts occurring in 2007 and 2008 that delayed Patterson‘s 2010 discovery that minor was his daughter. Plaintiffs argue they made every possible effort to timely amend the complaint, and did not unreasonably delay in requesting leave to amend.
A. Legal Principles
A trial court has wide discretion to allow the amendment of pleadings, and generally courts will liberally allow amendments at any stage of the proceeding. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761 [135 Cal.Rptr.2d 433].) On a motion for summary judgment ” ‘[w]here the complaint is challenged and the facts indicate that a plaintiff has a good cause of action which is imperfectly pleaded, the trial court should give the plaintiff an opportunity to amend.’ ” (Soderberg v. McKinney (1996) 44 Cal.App.4th 1760, 1773 [52 Cal.Rptr.2d 635].) But if the proposed amendment fails to state a cause of action, it is proper to deny leave to amend. (Oakland Raiders v. National Football League, supra, 131 Cal.App.4th at p. 652.)
Further, unwarranted delay in seeking leave to amend may be considered by the trial court when ruling on a motion for leave to amend (Huff v. Wilkins (2006) 138 Cal.App.4th 732, 746 [41 Cal.Rptr.3d 754]), and appellate courts are less likely to find an abuse of discretion where, for example, the proposed amendment is ” ‘offered after long unexplained delay . . . or where there is a lack of diligence’ ” (Hulsey v. Koehler (1990) 218 Cal.App.3d 1150, 1159 [267 Cal.Rptr. 523]). Thus, when a plaintiff seeks leave to amend his or her complaint only after the defendant has mounted a summary judgment motion directed at the allegations of the unamended complaint, even though the plaintiff has been aware of the facts upon which the amendment is based, “[i]t would be patently unfair to allow plaintiffs to defeat [the] summary judgment motion by allowing them to present a ‘moving target’ unbounded by the pleadings.” (Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 176 [59 Cal.Rptr.3d 672]; but see Laabs v. City of Victorville, supra, 163 Cal.App.4th at p. 1257, fn. 6 [if at the hearing of a summary judgment motion a party finds his pleading inadequate, the court may and should permit him to amend].)
B. Plaintiffs Have Not Demonstrated the Trial Court Abused Its Discretion in Denying Leave to Amend
Plaintiffs have not shown the trial court manifestly abused its discretion in denying them leave to amend. They argue they timely sought to allege “specific further negligent acts” on LabCorp‘s part in 2007 and 2008 to support an additional claim for negligence or “further gross negligence.” These acts, which plaintiffs do not further describe in their opening briefs, presumably are defendants’ asserted failure to send the parties copies of the test results from additional DNA testing conducted in 2008. But the trial court‘s decision was not limited to unreasonable delay and plaintiffs do not address the remainder of the court‘s ruling, which addressed the requirements of
Nor do plaintiffs explain on appeal how their new theory—that they suffered damage by the lack of knowledge of the 2008 DNA testing—is consistent with the complaint‘s allegations that plaintiffs “did not suspect, nor were they able to discover this error until the Defendant conducted further DNA tests in February 2008” or their admissions in their summary judgment papers that Leslie Falcon discovered the error in February 2008, and Patterson was served with another lawsuit relating to minor‘s paternity in or around April or May 2008. Plaintiffs “‘may not discard factual allegations of a prior complaint, or avoid them by contradictory averments, in a superseding, amended pleading,’ ” and “must explain inconsistencies between the prior
DISPOSITION
The judgment is affirmed.
McConnell, P. J., and Irion, J., concurred.