Judge Mark A. Young, Case 20SMCV01593 2023-03-30 Tentative Ruling

Judge: Mark A. Young, Case: 20SMCV01593, Date: 2023-03-30 Tentative Ruling

Case Number: 20SMCV01593 Hearing Date: March 30, 2023 Dept: M

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

CASE NO.: 20SMCV01593

MOTION: Motion for Leave to Amend

HEARING DATE: 3/30/2023

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

Defendant’s request for judicial notice is GRANTED.

Plaintiff moves for leave to file the proposed Third Amended Complaint (TAC), which adds two causes of action for breach of oral contract and conversion. Plaintiff provides the effect of the amendment, and why the amendment is necessary and proper.

Counsel declares that the conversion claim involves the same facts as the other claims, but was inadvertently omitted between complaints. (Hofman Decl., ¶ 3.) As to the breach of oral contract claim, counsel declares that there were “communications involving the breakdown of how the cash was actually distributed to plaintiff. This communication occurred in the later part of 2022.” (Id.) Counsel learned that Plaintiff was paid $200,000, apparently after the contract was written, for a deal relating to an entire season, as opposed to just a pilot as reflected in the written contract. (Id.)

First, the Court is concerned why this explanation was not offered in response to Defendant’s demurrer. The Court held that there was a contradiction between the pleadings regarding the written nature of the contract, implicating the sham pleading doctrine. This required Plaintiff to explain the basis for the change. Plaintiff only proffered that the contract had no integration clause excluding oral terms and that a more detailed written agreement would be drafted. This did not explain why the oral terms were not initially pled. Counsel would naturally have access to this information at that time, so the information should have been presented then.

Second, this explanation does not adequately identify when the facts giving rise to the amended allegations were discovered. Counsel states in very general terms that an unspecified “communication” occurred in the later part of 2022. The Court notes that the basis for the amendments regarding the oral nature of the contract had to have been discovered by counsel prior to March 3, 2022, when Plaintiff filed the FAC which pled that the “most essential terms of the agreement[] were oral.” (FAC ¶10.) Thus, the proffered explanation does not suffice.

Third, the court is also not inclined to grant leave because it would moot the pending demurrer that was filed prior to the instant motion. The Court does not wish to stop Plaintiff from pleading a valid cause of action. The Court mere wants a substantial explanation for the amendments, which includes specifics on when counsel discovered his mistake in pleading the written contract. Further, the Court is inclined to allow amendment for the conversion claim but will only grant leave to amend after considering the pending demurrer.

The motion for leave will be continued to be heard after the demurrer. The Court will provide counsel one final opportunity to fully explain the failure to previously plead the oral terms of the contract in a supplemental declaration. Counsel may file this declaration no later than 10 court days prior to the hearing. Defendant may provide a supplemental opposition regarding issues raised in the supplemental declaration five days prior to the continued hearing date, with a five-page limit.

Accordingly, the motion is CONTINUED to July 26, 2023, at 8:30 a.m.