Judge: Gregory Keosian, Case: 21STCV36338, Date: 2023-09-06 Tentative Ruling

Case Number: 21STCV36338    Hearing Date: September 6, 2023    Dept: 61

Plaintiff AMCO Insurance Company’s Motion for Leave to File First Amended Complaint is GRANTED. Plaintiff shall attach a “true copy” of the lease as alleged in their proposed amended complaint, without the present omissions caused by the margin cut-offs.

Plaintiff to provide notice.

I.                   MOTION FOR LEAVE TO FILE AMENDED COMPLAINT

Code Civ. Proc. section 473 subd. (a)(1) states that:

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.

“The trial court has discretion to permit or deny the amendment of the complaint, but instances justifying the court's denial of leave to amend are rare.” (Armenta ex rel. City of Burbank v. Mueller Co. (2006) 142 Cal.App.4th 636, 642.)

“Although courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial [Citations], this policy should be applied only ‘[w]here no prejudice is shown to the adverse party . . .’ [Citation.] A different result is indicated ‘[w]here inexcusable delay and probable prejudice to the opposing party’ is shown. [Citation.]” (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487.)

Pursuant to California Rule of Court Rule 3.1324, “[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.”

Such a motion must include a supporting declaration stating, “(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.” (CRC Rule 3.1324, subd. (b).)

Plaintiff Amco Insurance (Plaintiff) seeks leave to file a first amended complaint (FAC) alleging three causes of action, rather than the single cause of action for breach of lease agreement contained in the present complaint. The two new causes of action are for express indemnification and equitable indemnification. (Pleasant Decl. ¶ 5.) The amended complaint also includes more detailed factual allegations.. (Ibid.) The amendments are the product of Plaintiff’s recent retaining of new counsel. (Pleasant Decl. ¶ 3.)

Defendant Whankuk Je (Defendant) in opposition argues that the inclusion of a third cause of action for equitable indemnification is unavailable against him because he has already been determined not to be a joint tortfeasor in the underlying action. (Opposition at pp. 3–4, citing Stop Loss Ins. Brokers, Inc. v. Brown & Toland Medical Group (2006) 143 Cal.App.4th 1036, 1040.) Defendant also argues that the exhibit to the proposed complaint, purporting to contain a true and correct copy of the lease agreement, is cut off at the margins to include only partial pages. (Opposition at p. 4.)

Defendant’s first argument as to the invalidity of the third cause of action is more properly tested in a demurrer or other dispositive challenge to the pleadings. While leave to amend may be denied where it would be futile, ““[t]he preferable practice [is] to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.) Thus Defendant’s challenge to the third cause of action provides no basis to deny the motion.

Defendant’s argument as to the condition of Exhibit A to the proposed pleading is more meritorious. The proposed exhibit appears on each page to cut off the bottom of the page displayed, to the point that whole sections or subsections of the lease appear to be missing. (Motion Exh. A.) Leave to amend may be granted, but on the condition that Plaintiff attach a “true copy” of the lease as they propose in their amended pleading, without the omissions identified by Defendant.

The motion is therefore GRANTED under the above condition.