Judge: James L. Crandall, Case: 21-1187740, Date: 2022-10-20 Tentative Ruling

Motion for Leave to Amend

Cross-Defendant George Cheng’s Motion for Leave to File an Amended Answer to the Second Amended Cross-Complaint (Motion), filed on 8-9-22 under ROA No. 87, is GRANTED.

Code of Civil Procedure section 473, subdivision (a), states in part, “. . . 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 of Civil Procedure section 576 provides, “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.”

“It is well established that ‘California courts “have a policy of great liberality in allowing amendments at any stage of the proceeding so as to dispose of cases upon their substantial merits where the authorization does not prejudice the substantial rights of others.” [Citation.] Indeed, “it is a rare case in which ‘a court will be justified in refusing a party leave to amend his [or her] pleading so that he [or she] may properly present his [or her] case.’ ” [Citation.]’ (Douglas v. Superior Court (1989) 215 Cal.App.3d 155, 158, 263 Cal.Rptr. 473.)

Thus, absent a showing of prejudice to the adverse party, the rule of great liberality in allowing amendment of pleadings will prevail. [Citation.]” (Board of Trustees v. Superior Court (2007) 149 Cal.App.4th 1154, 1163.) “Courts must apply a policy of liberality in permitting amendments at any stage of the proceeding, including during trial, when no prejudice to the opposing party is shown. [Citation.] ‘However, “ ‘even if a good amendment is proposed in proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial.’ ” ’ [Citation.]” (P&D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1345.)

“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.) “ ‘Leave to amend should not be granted where . . . amendment would be futile.’ [Citation.]” (Sandler v. Sanchez (2012) 206 Cal.App.4th 1431, 1437.)

Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048, states, “As Justice Kaufman has noted, even if the proposed legal theory is a novel one, ‘the preferable practice would be 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.’ [Citation.]”

King v. Mortimer (1948) 83 Cal.App.2d 153, 158 [“it has long been the rule that a trial court’s denial of leave to amend constitutes an abuse of discretion unless the complaint ‘shows on its face that it is incapable of amendment.’”

Morgan v. Superior Court (1959) 172 Cal.App.2d 527 states at page 530: “While a motion to permit an amendment to a pleading to be filed is one addressed to the discretion of the court, the exercise of this discretion must be sound and reasonable and not arbitrary or capricious. [Citations.] And 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.’ [Citations.] If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion. [Citations.]”

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.” (Emphasis in Cal. Rules in Court, rule 3.1324.)

The Motion complies with California Rules of Court, rule 3.1324.

The Motion includes a copy of the proposed Amended Answer. (Declaration of Katherine K. Meleski; Exhibits 1 and 2.) The Motion identifies the proposed amendments and states where they are located in the proposed Amended Answer. (Motion 5:20-25.)

The declaration in support of the Motion satisfies the requirements of California Rules of Court, rule 3.1324(b). (Declaration of George Cheng ¶¶ 4-8.)

Cross-Complainant argues that the Motion is premature and prejudicial. Cross-Complainant contends the Motion is premature because the Probate Court will hear whether Cross-Complainant will be given leave to file a late Creditor’s claim on 1-9-23. However, Cross-Defendant does not have the burden of establishing that the defense it is requesting leave to add to his Answer has merit and will continue to have merit in the future.

Cross-Complainant contends that allowing leave to amend will be prejudicial because it will likely delay the trial in this matter. This is not a sufficient showing of prejudice.

Based on the foregoing, the Court GRANTS Cross-Defendant George Cheng’s Motion for Leave to File an Amended Answer to the Second Amended Cross-Complaint, filed on 8-9-22 under ROA No. 87.

Cross-Defendant to file its Amended Answer within 10 days.

Cross-Defendant to give notice.

Future hearing dates

12/5/22 – Jury Trial

12/22/22 – Motion for Leave to File a Cross-Complaint

1/12/23 – Mtn. for Judgment on the Pleadings