TENTATIVE RULING

Defendant Lara Shapiro’s Motion for Leave to File Amended Answer is DENIED.

Defendant Lara Shapiro to give notice. 

REASONING

The court may grant leave to amend the pleadings at any stage of the action. (Code Civ. Proc., § 473, subd. (a).) A party may discover the need to amend after all pleadings are completed (the case is “at issue”) and new information requires a change in the nature of the claims or defenses previously pleaded. (See Dye v. Caterpillar, Inc. (2011) 195 Cal.App.4th 1366, 1380.)

“The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified. Leave to amend should be denied only where the facts are not in dispute, and the nature of the plaintiff’s claim is clear, but under substantive law, no liability exists and no amendment would change the result.” (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428, internal quotation marks and citations omitted.) Courts apply a policy of great liberality in permitting amendments to the complaint “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.) Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, added costs of preparation, or an increased burden of discovery. (See Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488 [trial court’s denial of leave to amend was proper where those factors were present].) If the delay in seeking the amendment has not misled or prejudiced the other side, the liberal policy of allowing amendments prevails. (See Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565 [describing same].)

A motion for leave to amend 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.

(Cal. Rules of Court, rule 3.1324(a).) 

Further, a separate declaration must accompany the motion and must specify the following:

(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.

(Cal. Rules of Court, rule 3.1324(b).)

Defendant Lara Shapiro (“Defendant”) moves the Court for leave to file a First Amended Answer to allege an additional affirmative defense of unclean hands on the ground that Plaintiff Ben Rad (“Plaintiff”) allegedly defrauded the Court in his marriage dissolution action by failing to disclose the purchase of his current home and the proceeds of a creditor’s claim during the pendency of the dissolution action. Defendant has provided a redlined copy of the proposed First Amended Answer as Exhibit C to her motion. (Mot., Shapiro Decl. ¶ 5, Ex. C.) Defendant represents that she disclosed the facts supporting this affirmative defense in her discovery responses served on March 17, 2023, and she states that her prior attorney omitted this from her original answer. (See Mot., p. 4, ll. 10-11; Shapiro Decl. ¶ 4, Ex. B.)

The Court finds that amendment is not warranted here. First, Defendant fails to state when she learned of the facts underlying her proposed affirmative defense so the Court may determine whether Defendant timely moved to amend her answer after learning the facts. Second, Defendant concedes that she was aware of these facts at least in March 2023, when she stated the facts in discovery responses, but she waited nearly a year to move for leave to file her amended answer. Most importantly, though, it is not clear how the facts provided by Defendant would serve as an affirmative defense to Plaintiff’s claims for breach of fiduciary duty, fraudulent concealment/non-disclosure, negligence, breach of contract, and breach of implied covenant of good faith and fair dealing. Assuming Defendant’s representations are true, and the trier of fact could conclude that Plaintiff failed to disclose certain information in the marriage dissolution action, it is not clear how this would have any bearing on claims that Defendant breached her fiduciary duty to Plaintiff when she disbursed Plaintiff’s funds to a third party without consent, resulting in a monetary loss to Plaintiff. Defendant argues that Plaintiff’s conduct is relevant because the funds were community property, and Plaintiff has asserted a loss to the community, but this does not render the allegations an affirmative defense against Plaintiff’s claims. Accordingly, Defendant Lara Shapiro’s Motion for Leave to File Amended Answer is DENIED.