Judge: James L. Crandall, Case: 21-1178470, Date: 2022-09-08 Tentative Ruling

Motion for Leave to Amend

Defendants, Kevin Murphy USA, Inc., and Kevin Murphy Group Pty. Ltd.’s (Defendants) Unopposed Motion for Leave to File Amended Answer, filed 4-8-22 under ROA No. 48 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.”

Each Defendant moves for leave to file an amended answer which makes the following changes:

(1) Add affirmative defense that “Defendants were fraudulently induced to enter into the 2020 Employment Agreement with Plaintiff;”

(2) Add affirmative defense that “Plaintiff materially breached the 2020 Employment Agreement excusing any obligation on the part of Defendants to perform under that Agreement;”

(3) Add affirmative defense that “Plaintiff breached the fiduciary duty he owed to Defendants as an officer;”

(4) Add affirmative defense that “Defendants had mixed motives to terminate Plaintiff;”

(5) Add amended response to paragraph 37 of the complaint;

(6) Correct minor typographical errors.

Here, Defendants’ motion complies with Rule 3.1324. Defendants submitted copies of their proposed First Amended Answers as Exhibits 1-2 to the Declaration of Peter Bransten. (Bransten Declaration) Defendants also submitted red-lined copies of the proposed First Amended Answers as Exhibits 3-4 to the Bransten Declaration.

The Bransten Declaration describes the proposed changes to Defendants’ answers at paragraphs 3-5.

The Bransten Declaration describes the matters required under Rule 3.1324(b) at paragraphs 8-14.

Plaintiff has filed a Notice of Non-Opposition and thus concedes to Defendants on their motion.

Therefore, Defendants’ motion is GRANTED.

In summary, Defendants, Kevin Murphy USA, Inc., and Kevin Murphy Group Pty. Ltd.’s (Defendants) Unopposed Motion for Leave to File Amended Answer, filed 4-8-22 under ROA No. 48 is GRANTED.

Defendants are to give notice and file the proposed First Amended Answers within 10 days of this date.

Future hearing dates

3/24/23 – MSC

5/1/23 – Jury Trial