Judge: Mark A. Young, Case: 21SMCV00828, Date: 2022-08-26 Tentative Ruling

Case Number: 21SMCV00828    Hearing Date: August 26, 2022    Dept: M

CASE NAME:           Bushnell, v. Farmers Insurance Exchange, et al.

CASE NO.:                21SMCV00828

MOTION:                  Motion for Leave to File a Second Amended Complaint

HEARING DATE:   8/26/2022

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

Plaintiffs Nancy and Nolan Bushnell move to file a proposed Second Amended Complaint (SAC). They meet the procedural requirements. Counsel explains that the proposed amendments fall into two categories: (1) supplementing previous allegations regarding the Umbrella Policy with new developments that occurred after the filing of the First Amended Complaint; and (2) adding a new cause of action for Elder Abuse, based on the same general set of facts as those already pleaded. Plaintiffs provide a clean and redlined copies.

Plaintiffs assert that this motion became necessary due to recent developments. Specifically, after being added as a party, Defendant Truck Insurance Exchange denied the existence of coverage under that Policy. (Gold Decl., ¶ 6.) Based on this development, counsel conducted additional legal research regarding Defendants’ wrongful denial of policy benefits to the Bushnells, and concluded that this warranted a separate tort of elder abuse under Welfare and Institutions Code § 15600, et seq. (Id.) Counsel explains that this motion was not made at that time because the parties were in the midst of scheduling mediation to discuss a potential settlement, and reasonably decided to hold off on seeking to amend the complaint until after mediation. (Id. ¶ 7.) The parties’ June 30, 2022, mediation was unsuccessful. (Id.)

The Court observes no prejudice to Defendants from amendment. Accordingly, Plaintiff’s unopposed motion is GRANTED.  Plaintiff to file the SAC by August 30, 2022.