Judge: Deborah C. Servino, Case: 30-2020-01146777, Date: 2022-11-18 Tentative Ruling
Plaintiff Andrew Nelson’s unopposed motion to amend the complaint, is granted.
The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. (Code of Civ. Proc., § 473, subd. (a)(1).) Additionally, any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order. (Code of Civ. Proc., § 576.)
A motion to amend a pleading before trial must: (1) include a copy of the proposed amendment or amended pleading; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any, by page, paragraph, and line number, the additional allegations are located. (Cal. Rules of Court, rule 3.1324(a).) A separate declaration must accompany the motion and must specify: (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made earlier. (Cal. Rules of Court, rule 3.1324(b).)
California courts generally allow great liberality, at all stages of the proceeding, in permitting the amendment of pleadings in order to resolve cases on their merits. (IMO Development Corp. v. Dow Corning (1982) 135 Cal.App.3d 451, 461.) It is a “rare case” in which denial of leave to amend can be justified. (Douglas v. Superior Court (1989) 215 Cal.App.3d 155, 158.) This liberality only applies so long as there is no prejudice to the opposing party. (Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564.) Denial of leave to amend is appropriate where inexcusable delay and probable prejudice to the opposing party is shown. This may happen where a proposed amendment opens up an entirely new field of inquiry without any satisfactory explanation as to why the major change in point of attack had not been made long before trial. (Estate of Murphy v. Gulf Ins. Co. (1978) 82 Cal.App.3d 304, 311.) If the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the judge has discretion to deny leave to amend. (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.)
Plaintiff has largely met these requirements. The motion does not lay out, by page and line, the amendments to the pleading. For instance, Plaintiff does not state what allegations in the previous pleading are proposed to be deleted and what allegations are proposed to be added. While the proposed fourth amended complaint has the fifth cause of action highlighted, Plaintiff has not outlined the changes to paragraph 33, for instance. Plaintiff’s declaration explains the reasons for the proposed changes.
Plaintiff has not unduly delayed in bringing his motion to amend, having filed it approximately a month after the Court struck the fifth cause of action of the Third Amended Complaint and after defense counsel did not respond to a request to stipulate to the amendment. Having not filed a timely opposition, Defendants have not shown that they have been unduly prejudiced. Trial IS scheduled for May 8, 2023.
No later than November 28, 2022, Plaintiff is to electronically file his fourth amended complaint. (See Pick Decl., Exh. E.) Plaintiff shall serve the fourth amended complaint pursuant to the Code of Civil Procedure.
Plaintiff shall give notice of this ruling.