Judge: Malcolm Mackey, Case: 21STCV27107, Date: 2022-12-09 Tentative Ruling

Case Number: 21STCV27107    Hearing Date: December 9, 2022    Dept: 55

BARKEN v. MONTELONGO                                                        21STCV27107

Hearing Date:  12/9/22,  Dept. 55

#7:   MOTION FOR LEAVE TO FILE AMENDED ANSWER.

Notice:  Okay

Opposition

MP:  Defendant MARICELA MONTELONGO, THE ADMINISTRATOR OF ESTATE OF KLAUS GOETTEL.

RP:  Plaintiff.

Summary

On 7/23/21, Plaintiff GARY BARKEN filed a Complaint against defendants MARICELA MONTELONGO and THE ESTATE OF KLAUS GOETTEL, et al., alleging that Plaintiff’s Mustang that the decedent stored was returned without parts, and the decedent had owed Plaintiff for an unpaid loan in breach of contract.  The causes of action are breach of contract and common counts.

MP Positions

Moving party requests an order allowing leave to amend the Answer, on grounds including the following:

·         The First Amended Answer is in furtherance of justice.

·         It sets forth two additional affirmative defenses and supplements an existing affirmative defense.

·         These affirmative defenses were accidentally omitted from the original answer.

·         The affirmative defenses concern Probate requirements to make a creditor’s claim before filing a civil action.

·         The motion was filed promptly after the Court denied Defendant’s motion for judgment on the pleadings, thereby indicating that would not dispose of this case.

·         Plaintiff has ample time and opportunity to conduct formal and/or informal discovery concerning the additional affirmative defenses.  Trial is set for 5/8/23.

RP Positions

Opposing party advocates denying, for reasons including the following:

·         Trial should be continued to avoid prejudice caused by incomplete discovery,

·         If the amendment were allowed, Plaintiff will not have discovery responses until January and after meeting and conferring.

·         Plaintiff likely would need to seek an order advancing a discovery motion hearing date.

Tentative Ruling

The motion is granted, with a condition that trial will be continued to allow sufficient discovery time.

Trial set for 5/8/23 is advanced and continued to March 11, 2024 at 9:00 a.m. Final Status Conference is continued to March 1, 2024.

Courts have discretion to impose certain types of conditions on granting of leave to amend pleadings.  Armenta ex rel. City of Burbank v. Mueller Co. (2006) 142 Cal.App.4^th 636, 642-43.

“‘“[I]t is irrelevant that new legal theories are introduced as long as the proposed amendments 'relate to the same general set of facts….”’”   Atkinson v. Elk Corp. (2003) 109 Cal. App. 4th 739, 761.

A newly raised argument or court ruling may be justification for delay in moving for leave to amend.  Cf.  Foundation For Taxpayer And Consumer Rights v. Nextel Communications, Inc. (2006) 143 Cal.App.4^th 131, 136 (“The argument fails because the FTCR had no reason to amend its complaint until Nextel sought to apply Proposition 64 to this case.”).