TENTATIVE RULING

Defendant/Cross-Complainant Keith A. Fink’s Motion for Leave to File First Amended Cross Complaint is GRANTED.

Defendant/Cross-Complainant Keith A. Fink’s First Amended Cross Complaint is deemed filed as of the date of entry of this order.

Defendant/Cross-Complainant Keith A. Fink 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/Cross-Complainant Keith A. Fink (“Defendant”) moves the Court for leave to file a First Amended Cross-Complaint to add two additional claims for negligent misrepresentation and intentional misrepresentation by Plaintiff/Cross-Defendant Douglas Emmett 2007, LLC (“Plaintiff”), as well as adding factual allegations to Defendant’s existing promissory estoppel claim. Defendant has provided a copy of the proposed pleading (Mot., Sagi-Lebowitz Decl. ¶ 5, Ex. A), but Defendant has failed to provide the required information under rule 3.1324(b) of the California Rules of Court, i.e., Defendant fails to state when the facts giving rise to the amended allegations were discovered so the Court may determine whether Defendant timely sought to amend the pleading. Nonetheless, this case is just over a year old, and Plaintiff has filed a non-opposition to Defendant’s motion, such that the Court concludes that it is proper to allow Defendant leave to file a First Amended Cross-Complaint. Accordingly, Defendant/Cross-Complainant Keith A. Fink’s Motion for Leave to File First Amended Cross Complaint is GRANTED. Defendant/Cross-Complainant Keith A. Fink’s First Amended Cross Complaint is deemed filed as of the date of entry of this order.