Judge: Deborah C. Servino, Case: 30-2021-01188024, Date: 2022-07-29 Tentative Ruling

Plaintiff Qui Tu Vuong’s motion to amend by filing a third amended 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).)

Plaintiff has largely met these requirements.  The notice of motion does not lay out, by page and line, the additions proposed but the attached appendix sets forth the proposed fourth cause of action.  Plaintiff’s declaration explains the reasons for the proposed changes.

Defendants argue that Plaintiff’s declaration is not compliant with California Rule of Court 3.1324.  For example, they assert that the declaration does not explain the timing. But Plaintiff expressly alleges it took him time to collect the rent receipts.  This was done in April 2022.  (Vuong Decl., at ¶ 8.) Plaintiff’s declaration substantially, and sufficiently, meets the requirements.

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.) 

The court finds that Plaintiff has not unduly delayed in bringing his motion to amend.  Defendants have not shown that they have been unduly prejudiced, even if they will need to bring further demurrers or motions to attack the amended pleading.  Trial was recently scheduled for August 7, 2023, more than a year away. 

Defendants also argue that the proposed additional claim fails and Plaintiff has sued the wrong party. Ordinarily, the court does not consider the validity of the proposed amended pleading in deciding whether to grant leave to amend.  (Kittredge Sports Co. v. Superior Court (Marker, U.S.A.) (1989) 213 Cal.App.3d 1045, 1048.)  Grounds for demurrer or motion to strike are premature for this court to consider.  Similarly, to the extent Defendants assert that the additional claim would be subject to a special motion to strike or a motion for summary judgment, those are not grounds for denying this motion.

No later than August 15, 2022, Plaintiff is to file his third amended complaint, adding only those allegations set forth in the appendix to his motion to amend.  Plaintiff shall serve the third amended complaint pursuant to the Code of Civil Procedure.

On July 22, 2022, the court overruled Defendants demurrer to the Second Amended Complaint and ordered Defendants to file an answer to the Second Amended Complaint within 15 days.  Because Plaintiff has been granted leave to file a third amended complaint, Defendants need not file an answer to the Second Amended Complaint.

Plaintiff shall give notice of the ruling.