TENTATIVE RULING

Defendant Flavio Vanoff’s Motion for Leave to File a First Amended Answer is GRANTED.

Defendant Flavio Vanoff’s First Amended Answer is deemed filed as of the date of entry of this order.

Defendant Flavio Vanoff 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 Flavio Vanoff (“Defendant”) moves the Court for leave to file a First Amended Answer to alleged a twelfth affirmative defense of accord, i.e., that Plaintiff Rosario Villalobos (“Plaintiff”) agreed to accept settlement funds and other consideration in discharge of all obligations and liabilities now alleged by Plaintiff against Defendant. Defendant has provided a copy of the First Amended Answer (Mot., Ma Decl. ¶ 11, Ex. G) and stated the proposed amendments (Mot., p. 2, ll. 9-14). Plaintiff opposes the motion on the grounds that the motion is deficient, and Defendant has not demonstrated the existence of an accord.

The Court finds that amendment is proper here. While Defendant does not provide a declaration describing when the underlying facts were learned, Defendant states in the motion that counsel was not aware of the full scope and contents of the pre-litigation discussions when the initial answer was filed. This case is relatively new, and while there is a trial date set, there is no basis to conclude that addition of this new affirmative defense would delay the trial. Plaintiff argues that the motion is deficient because the First Amended Answer does not include a copy of the subject settlement agreement, but she cites no legal authority to support this contention. As to whether Defendant has demonstrated the existence of an accord, Plaintiff provides only declarations with legal conclusions to this effect, and the Court does not assume that all evidence for and against a finding of settlement have been provided with this motion because this is not required to warrant allowing the amendment. The Court will determine at a later juncture whether a settlement exists between the parties. The Court need only determine now whether the proposed amendment may state a defense, and the Court finds that it does. Accordingly, Defendant Flavio Vanoff’s Motion for Leave to File a First Amended Answer is GRANTED. Defendant Flavio Vanoff’s First Amended Answer is deemed filed as of the date of entry of this order.