Judge: Armen Tamzarian, Case: 22STCV10400, Date: 2023-01-09 Tentative Ruling

Case Number: 22STCV10400    Hearing Date: January 9, 2023    Dept: 52

Cross-Complainant Patrick D. Cheh’s Motion for Leave to File Second Amended Cross-Complaint

Cross-Complainant Patrick D. Cheh moves for leave to file a second amended cross-complaint.  Courts have discretion to permit an amendment to any pleading “in furtherance of justice, and on any terms as may be proper.” (Code Civ. Proc., § 473, subd. (a)(1).)  “This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.”  (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047.)  Courts exercise their discretion “liberally to permit amendment,” and “[t]he policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified.”  (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.)

Cross-defendants Nile Niami and Castillian Pride LLC argue the motion and declaration do not meet the requirements of California Rules of Court, rule 3.1324.  Even if they are correct, the court exercises its discretion liberally to permit amendment.  As the red-lined version of the proposed second amended cross-complaint shows (Nakatsu Decl., Ex. A), the proposed amendments are not extensive.  The proposed second amended cross-complaint alleges the same seven causes of action, which arise from the same facts and transactions alleged in the first amended cross-complaint.

Cross-defendants also argue at length about the merits of the proposed second amended cross-complaint.  In ruling on a motion for leave to amend, courts generally do not consider the amended pleading’s merits.  (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 760.)

Finally, cross-defendants argue plaintiff’s delay has prejudiced them.  Courts have discretion to deny leave to amend when (a) the moving party has delayed bringing the proposed amendment; and (b) the delay in seeking leave to amend will cause prejudice to the opposing parties.  (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.) 

Cross-defendants fail to articulate or provide evidence of prejudice that justifies denying this motion.  They assert the following prejudice: “(1) cross-defendants have been forced to incur the expense of two separate rounds of predemurrer meet and confers and demurrers (and will incur the expense of a third if the SACC is allowed); (2) the setting of a trial date has been repeatedly postponed because the pleadings are not at issue; and (3) cross-defendants need new discovery to probe new allegations.”  (Opp., p. 15.)

This case is still young.  Plaintiff Above the Boulevard, LLC filed it on March 25, 2022.  Cheh answered and filed the initial cross-complaint on May 11.  Any delay and resulting prejudice were minimal. 

The motion is granted.  Cross-complainant Patrick D. Cheh is ordered to file the second amended cross-complaint forthwith.