Judge Donald F. Gaffney, Case Shin v. Balm 2022-08-03 Tentative Ruling

Judge: Donald F. Gaffney, Case: Shin v. Balm, Date: 2022-08-03 Tentative Ruling

TENTATIVE RULING

Motion for Leave to File an Amended Complaint

Plaintiff Gregory Shin moves for leave to file a First Amended Complaint. For the following reasons, Plaintiff’s motion 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. (Code Civ. Proc., § 473(a)(1).) 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 Civ. Proc., § 473(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 Civ. Proc., § 576.)

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.) Because the policy favoring amendment is so strong, “it is a rare case in which a court will be justified in refusing a party leave to amend his pleadings so that he may properly present his case.” (Morgan v. Superior Court (1959) 172 Cal. App. 2d 527, 530 (internal quotations omitted).)

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. Sup.Ct. (Vickers) (1981) 118 Cal. App. 3d 486, 490; Melican v. Regents of Univ. of Calif. (2007) 151 Cal. App. 4th 168, 176; Fisher v. Larsen (1982) 138 Cal. App. 3d 627, 649 (finding where plaintiff knew for over five months that certain claims had not been properly pleaded, and took no action to amend until after a summary judgment had been granted against it, it was not an abuse of discretion to deny leave to amend the complaint); Hulsey v. Koehler (1990) 218 Cal. App. 3d 1150.)

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. (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. (Rule 3.1324(b).)

In ruling upon a motion for leave to file an amended pleading, the trial court has the discretion to deny the request when the pleading is deficient as a matter of law and the defect cannot be cured by further amendment. (Yee v. Mobilehome Park Rental Review Bd. (1998) 62 Cal.App.4th 1409, 1428-1429; Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 230-231.)

Plaintiff’s motion is GRANTED. The First Amended Complaint attached as Exhibit “A” to the Declaration of Julie A. Farrugia is deemed filed and served.

Plaintiff to give notice.

TENTATIVE RULING

Motion for Leave to File an Amended Complaint-in-Intervention

Intervenor Southern California Gas Company moves for leave to file a First Amended Complaint-In-Intervention. For the following reasons, Intervenor’s motion is GRANTED.

Defendant Janice K. Gath, Trustee of the Janice K. Gath Revocable Trust dated April 13, 1995, and Trustee of the Robert and Evelyn Kronick Marital Deduction Trust dated March 19, 1987, did not identify any prejudice from the filing of Intervenor’s First Amended Complaint-in-Intervention. Intervenor’s motion is GRANTED. The First Amended Complaint-in-Intervention attached as Exhibit “A” to Intervenor’s Motion for Leave to File a First Amended Complaint-In-Intervention is deemed filed and served.

Intervenor to give notice.

TENTATIVE RULING

Motion for Summary Judgment

Defendant/Cross-Complainant Janice K. Gath, Trustee of the Janice K. Gath Revocable Trust dated April 13, 1995, and Trustee of the Robert and Evelyn Kronick Marital Deduction Trust dated March 19, 1987, moves for summary judgment as to all causes of action alleged against Gath in Plaintiff Gregory Shin’s Complaint and Intervenor Southern California Gas Company’s Complaint-in-Intervention.

Based on the court’s tentative rulings on the pending motions to amend, the submitted First Amended Complaint and First Amended Complaint-in-Intervention are accepted as the operative complaint and complaint-in-intervention. Defendant’s motion for summary judgment is DENIED as moot. Defendant may file a new motion for summary judgment, motion to dismiss, or other appropriate response to the First Amended Complaint and First Amended Complaint-in-Intervention.

Responding parties to give notice.