Judge: Lynette Gridiron Winston, Case: 23PSCV00435, Date: 2023-11-14 Tentative Ruling
Case Number: 23PSCV00435 Hearing Date: November 14, 2023 Dept: 6
CASE NAME: Shanhui Zhu v. Shiyi Zhang
Plaintiff’s Shanhui Zhu’s Motion for Leave to File Second Amended Complaint
TENTATIVE RULING
The Court GRANTS Plaintiff Shanhui Zhu’s motion for leave to file Second Amended Complaint.
Plaintiff is ordered to file and serve the Second Amended Complaint by November 21, 2023.
Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order.
BACKGROUND
This is an auto accident case. On February 14, 2023, Plaintiff Shanhui Zhu (Plaintiff) filed this action against Defendant Shiyi Zhang (Defendant), and Does 1 to 100, alleging causes of action for motor vehicle and general negligence. Plaintiff then filed the operative First Amended Complaint (FAC) on February 24, 2023.
On October 6, 2023, Plaintiff filed the instant motion for leave to file Second Amended Complaint. The motion is unopposed.
LEGAL STANDARD
Code of Civil Procedure section 473, subdivision (a)(1) provides, in relevant part: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. 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 Civ. Proc., § 473, subd. (a)(1).)
“This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047.) Under Rule 3.1324, subdivision (a) of the California Rules of Court, a motion to amend a pleading shall (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, subd. (a).)
Under Rule 3.1324, subdivision (b) of the California Rules of Court, 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. (Cal. Rules of Court, rule 3.1324, subd. (b).)
DISCUSSION
Plaintiff seeks leave to file a Second Amended Complaint (SAC) on the grounds that the FAC fails to attach the factual allegations and causes of action that comprise Plaintiff’s claims. Plaintiff also seeks to add causes of action for negligence per se and fraudulent transfer. Plaintiff contends Defendant will not be prejudiced if the motion is granted because the original complaint in this action was filed on February 14, 2023 and the FAC was filed on February 24, 2023. Plaintiff also seeks to add a party, Yuan Yin Fu, in connection with the fraudulent transfer claim. Plaintiff further notes that only some written discovery has been propounded thus far, and no trial date has been set.
Plaintiff contends the SAC is necessary and proper to put the case at issue as it relates to the cause of action, and since Plaintiff believes Defendant fraudulently transferred property following the filing of the original complaint. Plaintiff states that the reason the motion was not filed sooner was due to Plaintiff’s efforts to obtain Defendant’s stipulation to filing the SAC in lieu of this motion. Plaintiff further states that the effect of the SAC will be to provide properly pleaded facts for Plaintiff’s claims and add a cause of action and another defendant. The Court finds Plaintiff’s motion to be well-taken.
The FAC utilizes Judicial Council forms, but fails to include the necessary attachments for the causes of action alleged therein. (See generally FAC.) The proposed SAC should remedy these defects. (See Mayo Decl., Ex. 1.) The Court also agrees with Plaintiff that there does not appear to be any indication that prejudice would result to any of the parties here considering this action was only filed earlier this year. Additionally the Court construes Defendant’s lack of opposition to this motion as a tacit admission that Plaintiff’s motion is meritorious. (Holden v. City of San Diego (2019) 43 Cal.App.5th 404, 418; C. Opposing the Motion—and Rebutting the Opposition, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-C, ¶¿9:105.10.) The Court further finds that Plaintiff has sufficiently complied with the requirements of Rule 3.1324 of the California Rules of Court.
Based on the foregoing, the Court GRANTS Plaintiff’s motion for leave to file a Second Amended Complaint.
CONCLUSION
The Court GRANTS Plaintiff Shanhui Zhu’s motion for leave to file Second Amended Complaint.
Plaintiff is ordered to file and serve the Second Amended Complaint by November 21, 2023.
Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order.