Judge denies motion to file 3rd amended suit vs lawyer

Superior Court Associate Judge David A. Wiseman has denied a request by the parents and family members of the late teen beauty titlist Vinae Teofilia Deleon Guerrero to file a third amended malpractice complaint against one of their former lawyers.
Wiseman ruled that undue delay and prejudice to attorney Joseph J. Iacopino would occur if the court allowed Vicente and Chazrae Deleon Guerrero to tailor their complaint weeks before trial.

Wiseman said that justice would not be served by giving the plaintiffs a third opportunity to add a closely related theory of liability, given the extensive history of the case and the two previous opportunities afforded plaintiffs to amend their original complaint.

Vicente and Nadine Deleon Guerrero are the parents of Vinae Deleon Guerrero, who died in May 2007 after her vehicle was broadsided by a boom truck on Middle Road, Gualo Rai. Chazrae Deleon Guerrero is the sister of Vinae.

Iacopino and attorney Colin Thompson served as counsels for the Deleon Guerreros and other family members in their wrongful death lawsuit against the boom truck’s driver, Pacific Drilling Ltd., Mid-Pac Micronesia, Bisnes Mami Inc., and other unnamed co-defendants.

The lawsuit ended in a settlement. The settlement, however, prompted the Deleon Guerreros to sue their former lawyers Iacopino, Thompson, and Gilbert Birnbrich. Birnbrich used to work at Thompson’s law office.

According to court records, the Deleon Guerreros first filed their initial complaint against Iacopino on April 4, 2011, alleging legal malpractice, breach of fiduciary duty, breach of contract, and breach of duty of loyalty, as well as a claim for punitive damages.

In May 2011, Thompson, Birnbrich, and the Thompson law office filed a motion to dismiss the complaint. In August 2011, Iacopino also filed a motion to dismiss.

On Feb. 22, 2013, Wiseman granted Thompson, Thompson law firm, and Birnbrich’s motion to dismiss as to all counts, as well as Iacopino’s motion to dismiss two counts.

The remaining causes of action—counts 2, 4, and 5—involved legal malpractice based upon breach of fiduciary duty, breach of duty of loyalty, and punitive damages, respectively.

In April 2013, plaintiffs amended their complaint, alleging the remaining causes of action and adding a fourth cause of action, alleging a Consumer Protection Act violation.

In May 2013, Iacopino sought to have the amended complaint dismissed. In October 2013, Wiseman granted Iacopino’s motion to dismiss. Plaintiffs were given five days to file an amended complaint.

In October 2013, plaintiffs filed a second amended complaint, retaining all the causes of action alleged in the first amended complaint but with further factual support as to what plaintiffs’ claim are the damages caused by defendant’s alleged acts.

Iacopino then filed a motion to dismiss the second amended complaint.

On Dec. 5, 2013, Wiseman denied Iacopino’s motion to dismiss the remaining counts—1, 2, and 3—but granted his motion as to the Consumer Protection Act violation.

In that order, Wiseman declined to allow a third amendment of the complaint, saying the plaintiffs had two previous opportunities to tailor their complaint according to the requirements of the law.

The judge then set a trial for Feb. 3, 2014, but reset it to June 9, 2014, due to various discovery issues.

On March 3, 2014, the plaintiffs sought to file a third amended complaint. The Deleon Guerreros alleged that, based upon the promissory note received by their counsel on Feb. 25, 2014, justice requires that Vicente and Nadine be allowed to amend the complaint to re-allege a violation of the Consumer Protection Act—a cause of action the court dismissed in its Dec. 5, 2013 order.

Iacopino opposed the motion, arguing that discovery has concluded, the motion cut-off date of April 2, 2014, has passed, and trial is looming.

In his order last week, Wiseman determined that Iacopino would be prejudiced by allowing the Deleon Guerreros to raise new theories of liability just before trial and that accepting the third amended complaint would cause undue delay.

Even if plaintiffs were allowed to file an amendment for the third time, Wiseman said it would be futile because the new theory of liability would likely be barred by the statute of limitations and may not survive dispositive motions.