Judge: Helen Zukin, Case: 22SMCV00265, Date: 2023-01-06 Tentative Ruling

Case Number: 22SMCV00265    Hearing Date: January 6, 2023    Dept: 207

Background

Plaintiffs Burton N. Wixen and Joan Saunders Wixen, as trustees of The Wixen Family Trust, dated August 15, 1995 (“Plaintiffs”) bring this action against Defendant Kenter Investment Land, LLC (“Defendant”) for intentional trespass, negligent trespass, negligence, and nuisance. Plaintiffs and Defendant own adjoining real property and share a property line. Plaintiffs allege Defendant performed construction work which included trespassing on their property and constructing a wall on property owned by Plaintiffs, not Defendant. Plaintiffs bring this motion to amend their Complaint to include an additional cause of action for elder abuse against Defendant, and to amend certain factual allegations concerning the structures built by Defendant. Plaintiffs’ motion is unopposed.

Legal Standard

Leave to amend is permitted under Code of Civil Procedure section 473, subdivision (a) and section 576. The policy favoring amendment and resolving all matters in the same dispute is “so strong that it is a rare case in which denial of leave to amend can be justified. . ..” “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 ‘where no prejudice is shown to the adverse party . . .. [citation].  A different result is indicated ‘where inexcusable delay and probable prejudice to the opposing party’ is shown. [Citation].” (Magpali v. Farmers Group (1996) 48 Cal.App.4th 471, 487.) 

A motion for leave to amend a pleading must also comply with the procedural requirements of California Rules of Court, rule 3.1324, which requires a supporting declaration to set forth explicitly what allegations are to be added and where, and explicitly stating what new evidence was discovered warranting the amendment and why the amendment was not made earlier. The motion must also include (1) a copy of the proposed and numbered amendment, (2) specifications by reference to pages and lines where allegations would be deleted and added, and (3) a declaration specifying the effect, necessity and propriety of the amendments, date of discovery and reasons for delay. (See Cal. Rules of Court, rule 3.1324, subds. (a), (b).)

Analysis

Plaintiffs’ motion for leave to amend their Complaint seeks to add a cause of action for elder abuse and make minor changes to paragraphs 13-16, 29, 40, and 50 to replace references to a retaining wall with references to a “caisson and other structure(s).” (Ex. B to MacKay Decl.) Plaintiffs represent the basis for these proposed amendments were discovered after they retained their instant counsel to represent them in this action in June 2022, including expert evaluations performed in October and November 2022. (MacKay Decl. at ¶¶4-5, 9-11.) Plaintiffs represent they filed this motion as soon as was practicable and claim Defendant will not be prejudiced in any way by the amendment as no discovery has been propounded in this action to date, and sufficient time remains before trial for the parties to conduct discovery on Plaintiffs’ amended claims. (Id. at ¶13; Motion at 7.) The Court notes Defendant has not filed an opposition to Plaintiffs’ motion disputing these representations or otherwise asserting any basis for the Court to deny Plaintiffs’ request for leave to amend.

As set forth above, California law expresses a policy of great liberality in favor of granting requests to amend pleadings so disputes can be fully resolved on their merits. Plaintiffs’ motion satisfies the procedural requirements of California Rules of Court, rule 3.1324, and includes a copy of the proposed First Amended Complaint Plaintiffs seek to file as well as a declaration from counsel specifying the effect, necessity and propriety of the amendments, date of discovery and reasons for delay in seeking leave to amend. (MacKay Decl.) On the facts before it, the Court finds Plaintiffs have met their burden of showing good cause to permit the amendment of their Complaint and their motion for leave to amend is GRANTED.

Conclusion

Plaintiffs’ motion for leave to file a First Amended Complaint is GRANTED.