Judge: Donald F. Gaffney, Case: Kosinski v. Dollum, Date: 2023-05-24 Tentative Ruling



Motion for Leave to File FAC.


Plaintiff Corbin Kosinski moves for leave to file his proposed First Amended Complaint. For the following reasons, the motion is GRANTED.


A motion to amend a pleading before trial must: (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (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, and where, by page, paragraph, and line number, the additional allegations are located. (Cal. Rules of Ct., Rule 3.1324(a).) The motion must be supported by a declaration that specifies: (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 Ct., Rule 3.1324(b).)


Here, the court exercises its discretion to consider this motion despite Plaintiff’s failure to comply with all of the procedural requirements of Rule 3.1324.


Civil Procedure Code Section 473(a)(1) provides that “[t]he court may . . . in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading . . . .” The court’s discretion will usually be exercised liberally to permit amendment of the pleadings. (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified. (Ibid.)


Here, Plaintiff proposes striking: (1) the punitive damages claim as to Defendants Northwest Pioneer, Inc., Pioneer Northwest, and Pioneer Packaging; (2) the attorney’s fees claim on all but the fourth cause of action (breach of implied warranty); and (3) references to dismissed defendants. The court finds that permitting the proposed amendments is just and promotes the strong public policy permitting amendment.


No later than June 2, 2023, Plaintiff shall file the proposed FAC attached as Exhibit A to the Tavera Declaration. Plaintiff shall also serve a copy of the FAC on all defendants that remain in the action, including those defendants who have not yet appeared.