Judge: Mark A. Young, Case: 20SMCV01593, Date: 2023-02-21 Tentative Ruling

Case Number: 20SMCV01593    Hearing Date: February 21, 2023    Dept: M

CASE NAME:           Bullock v. Untouchable J Productions, et al.

CASE NO.:                20SMCV01593

MOTION:                  Motion for Leave to Amend

HEARING DATE:   2/21/2023

Legal Standard

If a party wishes to amend a pleading after an answer has been filed, or after a demurrer has been filed and after the hearing on the demurrer, or if he or she has already amended the pleading as a matter of course, the party must obtain permission from the court before amendment. (CCP §§ 473(a)(1), 576.)

Motions for leave to amend the pleadings are directed to the sound discretion of the court. “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading . . ..” (CCP § 473(a)(1); see CCP § 576.) Policy favors liberally granting leave to amend so that all disputed matters between the parties may be resolved. (See Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) Absent prejudice to the adverse party, the court may permit amendments to the complaint “at any stage of the proceedings, up to and including trial.” (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761 [internal quotes omitted].) Where leave is sought to add entirely new claims, the court may grant leave to amend if the new claims are based on the same general set of facts, and the amendment will not prejudice the opposing party. (Austin v. Massachusetts Bonding & Ins. Co. (1961) 56 Cal.2d 596, 600-602; Glaser v. Meyers (1982) 137 Cal.App.3d 770, 777 [holding trial court did not abuse its discretion in permitting amendment of complaint, which originally alleged constructive eviction, to allege retaliatory eviction where the new claim was based on the same general set of facts].)

Although denial is rarely justified, a judge has discretion to deny leave to amend if the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party. (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530; Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490). An opposing party is prejudiced where the amendment would necessitate a trial delay along with a loss of critical evidence, added preparation expense, increased burden of discovery, etc. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488 [leave properly denied where plaintiff sought leave on the eve of trial, nearly two years after the complaint was originally filed and gave no explanation for the delay which prejudiced defendant who did not discover or depose many of the witnesses who would support the new allegations and had not marshaled evidence in opposition of the new allegations].)

Procedurally, a motion for leave to amend must state with particularity what allegations are to be amended. Namely, it must state what allegations in the previous pleading are proposed to be deleted and/or added, if any, and where, by page, paragraph, and line number. (CRC, Rule 3.1324(a)(2)-(3).) The motion must be accompanied by a declaration specifying: (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. (CRC, Rule 3.1324(b).) The motion must also be accompanied by the proposed amended pleading, numbered to differentiate it from the prior pleadings or amendments. (CRC, Rule 3.1324(a)(1).) It is within the court’s discretion to require compliance with Rule 3.1324 before granting leave to amend. (Hataishi v. First American Home Buyers Protection Corp. (2014) 223 Cal.App.4th 1454, 1469.)

Analysis

On October 22, 2020, Plaintiff filed his initial complaint, alleging four causes of action for 1) breach of written agreement, 2) fraud, 3) conversion, and 4) an accounting. On January 26, 2022, the Court sustained Defendants’ demurrer as to each cause of action, with leave to amend. On March 3, 2022, Plaintiff filed his First Amended Complaint, omitting the conversion cause of action, and asserting causes of action for 1) breach of contract, 2) fraud, and 3) accounting. On October 25, 2022, the Court sustained Defendants’ demurrer to the first and second causes of action, with leave to amend.

On November 23, 2022, Plaintiff filed a Second Amended Complaint (SAC), stating three causes of action for 1) common count, 2) fraud, and 3) an accounting.  On January 3, 2023, despite just filing newly amended complaint, Plaintiff filed the instant motion to add the previously asserted contract and conversion causes of action.

Here, Plaintiff’s motion does not comply with the requirements of the California Rules of Court for filing this motion. Counsel does not provide a declaration showing why the amendment is necessary and proper; when the facts giving rise to the amended allegations were discovered; or the reasons why the request for amendment was not made earlier. Counsel only provides that he “should have clarified” and asked for leave to add additional causes of action. (Hofman Decl., ¶ 3.) This does not explain why this amendment is necessary or proper, considering that Plaintiff voluntarily omitted the same causes of action from previous pleadings.

Moreover, Defendants would be prejudiced by having their scheduled demurrer placed off calendar.  Accordingly, Plaintiff’s motion is DENIED.