Judge: James L. Crandall, Case: 19-1106203, Date: 2022-09-08 Tentative Ruling

Motion for Leave to Amend

Plaintiff, K Krew, Inc. dba ServPro of Upland/San Antonio Heights’s (Plaintiff) Motion for Leave to File a First Amended Complaint, filed 6-16-22 under ROA No. 82 is GRANTED.

Code of Civil Procedure section 473, subdivision (a)(1), provides 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.…” (Code Civ. Proc., § 473 subd. (a)(1).)

Courts are bound to apply a policy of great liberality in permitting amendments to the pleadings “at any stage of the proceedings, up to and including trial” absent prejudice to the adverse party. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) Indeed, even if the plaintiff delayed in seeking leave to amend, if the delay had not misled or prejudiced the other side, the liberal policy of allowing amendments prevails and it is an abuse of discretion to deny leave. (Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565.)

California Rules of Court, Rule 3.1324 states in part:

“(a) Contents of motion

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.

(b) Supporting declaration

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.”

Plaintiff moves for leave to file a First Amended Complaint (FAC) which alleges a fourth cause of action for “fraud and punitive damages.”

Plaintiff submits the declaration of April L. Verlato (Verlato) in support of its motion.

Exhibit 1 to the Verlato Declaration is a copy of Plaintiff’s proposed FAC.

Verlato attests that “[p]aragraphs being deleted have strike throughs” and that paragraphs 31-38 are being added. (Verlato Decl, ¶ 13.)

Further, the Verlato Declaration and Plaintiff’s motion states that the facts giving rise to the proposed FAC were discovered on February 23, 2022, at Defendant Esperanza Ambrust’s deposition. (Motion, 4; Verlato Decl., ¶ 12.) Specifically, Ms. Ambrust allegedly testified at deposition that she deposited funds meant to pay Plaintiff into Defendants’ personal accounts. (Id.)

In opposition, Defendants argue that Plaintiff’s motion is untimely. (Opposition, 1-3.) At a minimum, Plaintiff should have sought ex parte shortening time on the instant motion hearing date back in June 2022 given the October 2022 trial date.

Further, Defendants argue that Plaintiff’s motion also does not comply with California Rules of Court, rule 3.1324 because it does not cite what is proposed to be deleted and where by page, paragraph and line number.

Finally, Defendants assert that permitting Plaintiff to file the proposed FAC would cause at least 6 months in delays for trial on this matter because trial is set for barely a month after the hearing on this motion. The amended complaint is also factually deficient and would not withstand demurrer. Further, permitting Plaintiff to file the proposed FAC would cut off Defendants’ discovery rights as the current discovery cutoff is September 16, 2022. There would be no time to, for example, serve written discovery and notice a deposition.

The court finds that Plaintiff’s motion is not untimely.

As Plaintiff correctly points out, this action was not at issue until the court granted Defendants’ motion to vacate default on November 12, 2020. It is undisputed that Plaintiff did not discover facts giving rise to the instant action until February 23, 2022. This motion was filed June 2022. Defendants’ argument that Plaintiff’s motion is untimely because Plaintiff should have brought an ex parte shortening time in June 2022 is unavailing, as this does not demonstrate that Defendants would suffer prejudice by Plaintiff being granted leave to amend.

Plaintiff’s motion meets the requirements of California Rules of Court, rule 3.1324.

Therefore, Plaintiff’s motion is GRANTED.

Plaintiff is to give notice and file the proposed FAC within five days of this date.

The parties are to meet and confer regarding the current status of discovery, including whether additional discovery, if any, is anticipated. If defendant needs to conduct additional discovery the court will grant a continuance.

Future hearing dates

9/16/22 – MSC

10/17/22 – Jury Trial