Judge: Mark H. Epstein, Case: 21SMCV01952, Date: 2023-03-08 Tentative Ruling

Case Number: 21SMCV01952    Hearing Date: March 8, 2023    Dept: R

Plaintiff Kevin Bird (“plaintiff”) filed this breach of contract action against defendants Shay Ram and Oran, Inc.  Currently before the court is Oran’s motion for leave to file a cross-complaint.  It is not opposed.

Courts apply a policy of great liberality in permitting amendments to the complaint “at any stage of the proceedings, up to and including trial,” absent prejudice to the adverse party.  (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.)  Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, added costs of preparation, or an increased burden of discovery.  (See Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488 [trial court’s denial of leave to amend was proper where those factors were present].)  If the delay in seeking the amendment has not misled or prejudiced the other side, the liberal policy of allowing amendments prevails.  (See Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565 [describing same].)

The proposed cross-complaint here is not compulsory; it is permissive.  It seeks contribution and indemnity from various subcontractors.  However, such a cause of action need not be filed in the original action.  It can be brought separately after the original action is completed.  Given that, the court has discretion whether to grant the motion or not.  Normally, the court would grant the unopposed motion.  The concern here is that the trial is set for just over three months from now.  If granted, it would add five new parties to the action.  Those parties would legitimately say that they cannot be ready for trial in time.  The fact that the trial will of necessity be delayed persuades the court that it must DENY the motion.  If the parties were intending to continue the trial for a significant period of time so as to allow the other parties to be added and to do whatever discovery is needed to be ready for trial, the court would likely come to a different conclusion.