Judge: Colin Leis, Case: 21STCV27289, Date: 2024-10-18 Tentative Ruling

Case Number: 21STCV27289    Hearing Date: October 18, 2024    Dept: 74

McBride v. Cohen Pagano Accountancy, Inc

Plaintiff Kenneth McBride’s Motion for Leave to Amend Complaint.

BACKGROUND 

            The motion arises from a professional malpractice complaint.

            On July 26, 2021, Plaintiff filed the Complaint against Cohen Pagano Accountancy, Inc., Stanley M. Ingel, Laurand Management Co., Inc., Andrea M. Link and Does 1-25.  Plaintiff alleges that Defendants failed to timely prepare financial statements for tax planning, failed to provide tax planning consistent with applicable tax laws, and failed to provide proper advice concerning anticipated tax liability.  

            On July 30, 2024, Plaintiff filed the instant Motion for Leave to Amend Complaint.

            Trial is set for February 24, 2025.

LEGAL STANDARD

¿¿            Pursuant to Code of Civil Procedure section 473, subdivision (a)(1), “[t]he court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading.” Amendment may be allowed at any time before or after commencement of trial. (Code Civ. Proc., § 576.) “[T]he court’s discretion will usually be exercised liberally to permit amendment of the pleadings. The 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 (internal citations omitted).) “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend….” (Morgan v. Sup. Ct. (1959) 172 Cal.App.2d 527, 530.) Prejudice includes “delay in trial, loss of critical evidence, or added costs of preparation.” (Solit v. Tokai Bank, Ltd. New York Branch (1999) 68 Cal.App.4th 1435, 1448.) 

A motion to amend a pleading before trial must include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments. (Cal. Rules of Court, rule 3.1324(a).) The motion must also state what allegations are proposed to be deleted or added, by page, paragraph, and line number. (Cal. Rules of Court, rule 3.1324(a).) Finally, a separate supporting declaration specifying the effect of the amendment, why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and the reason the request for amendment was not made earlier must also accompany the motion. (Cal. Rules of Court, rule 3.134(b).) 

Delay is a significant factor in considering the denial of leave to amend.  (Emerald Bay Cmty. Ass’n v. Golden Eagle Ins. Corp. (2005) 130 Cal.App.4th 1078, 1097.)

DISCUSSION 

            Plaintiff includes a copy of the proposed amended complaint, which is serially numbered.  Plaintiff’s counsel also submitted a declaration identifying the changes, which are further identified in the proposed amended complaint by highlighting and capitalizing.  The Declaration also includes the effect of the amendment, when the facts giving rise to the amendment were discovered and the reason the request was not made earlier.  The Plaintiff has met the procedural requirements.

            Defendants contend that Plaintiff’s delay is inexcusable and will result in prejudice to the Defendant.  Plaintiff discovered the facts giving rise to the amendment sometime before they served discovery responses in August 2022. Plaintiff’s excuse for the failure to amend earlier is that Plaintiff’s counsel forgot.  Nevertheless, although Plaintiff did not file this motion until July 30, 2024, nearly two years later, Plaintiff asserts Defendants were on notice of the new basis for liability as it was disclosed in Plaintiff’s discovery responses. 

            Defendants allege that they would be prejudiced by allowing the amendment, but do not specify in what way they would be prejudiced.  Defendants allege generally that the scheduling must permit Defendants to file motions for summary judgement, although none have been filed.  They also allege that it would force Defendants to engage in new discovery, but do not specify what new discovery may be required.

            The Court grant’s Plaintiff’s motion for leave to amend despite the delay because Defendants fail to show any prejudice that may arise from the Amendment.

CONCLUSION 

The court grants Plaintiff’s motion for leave to amend.

Plaintiff shall give notice.