Judge: Michael E. Whitaker, Case: 22SMCV01030, Date: 2023-08-03 Tentative Ruling

Case Number: 22SMCV01030    Hearing Date: August 3, 2023    Dept: 207

TENTATIVE RULING

MOTION

            Plaintiff filed the original complaint in July of 2022 bringing two causes of action: (1) under the Song-Beverly Act; and (2) under the Magnuson-Moss Act.  On June 26, 2023, Defendant moved for summary judgment or in the alternative adjudication, with hearing scheduled for September 19, 2023.  Three days later, Plaintiff filed the instant motion for leave to amend the complaint to add a third cause of action for breach of express warranty under the California Commercial Code. 

            Defendant opposes the motion, and Plaintiff has filed a reply.    

LEGAL STANDARD

Amendments to Pleadings: General Provisions

            Under Code of Civil Procedure section 473, subdivision (a)(1), “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.”

            To wit, without notice to the other party the Court has wide discretion to allow either party (i) to add or strike the name of a party or (ii) to correct a mistake in the name of a party or a mistake in any other respect “in furtherance of justice” and “on any terms as may be proper.” (See Code Civ. Proc., § 473, subd. (a)(1); see also Marriage of Liss (1992) 10 Cal.App.4th 1426, 1429.) Alternatively, after notice to the other party, the Court has wide discretion to allow either party to amend pleadings “upon any terms as may be just.” (See Code Civ. Proc., § 473, subd. (a)(1). Similarly, Code of Civil Procedure section 576 states “Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.”

            Judicial policy favors resolution of all disputed matters between the parties and, therefore, leave to amend is liberally granted. (Berman vs. Bromberg (1986) 56 Cal.App.4th 936, 945; Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 488-489 [this has been an established policy in California since 1901] (citing Frost v. Whitter (1901) 132 Cal. 421, 424; Thomas v. Bruza (1957) 151 Cal.App.2d 150, 155).) The Court of Appeal in Morgan v. Superior Court held “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530, citations omitted.) Moreover, “it is an abuse of discretion for the court to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048 [opposing party did not establish harm by the delay in moving to amend the complaint].)

            “The court may grant leave to amend the pleadings at any stage of the action.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023) ¶ 6:636 (hereafter Weil & Brown).) Denial of a motion to amend is rarely justified if the motion is timely made and granting the motion will not prejudice the opposing party. (Id. at ¶ 6:639, citations omitted.) However, if the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the judge has discretion to deny leave to amend. (Id. at ¶ 6:655, citations omitted. Absent prejudice, any claimed delay alone is not grounds for denial. “If the delay in seeking the amendment has not misled or prejudiced the other side, the liberal policy of allowing amendments prevails. Indeed, it is an abuse of discretion to deny leave in such a case even if sought as late as the time of trial. (Id. at ¶ 6:653 (citing Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565).) “Prejudice exists where the amendment would result in a delay of trial, along with loss of critical evidence, added costs of preparation, increased burden of discovery, etc. . . . But the fact that the amendment involves a change in legal theory which would make admissible evidence damaging to the opposing party is not the kind of prejudice the court will consider.” (Weil & Brown, supra, at ¶ 6:656, citations omitted.)

            “Even if some prejudice is shown, the judge may still permit the amendment but impose conditions, as the Court is authorized to grant leave ‘on such terms as may be proper.’” (Weil & Brown, supra, at ¶ 6:663, citation omitted.) For example, the court may cause the party seeking the amendment to pay the costs and fees incurred in preparing for trial. (Id. at ¶ 6:664 (citing Fuller v. Vista Del Arroyo Hotel, 42 Cal.App.2d 400, 404).)

California Rules of Court, rule 3.1324: Procedural Requirements

            Pursuant to California Rules of Court, rule 3.1324(a), a motion to amend a pleading before trial must:

“(1) Include a copy of the proposed amendment or amended pleadings, which must be serially numbered to differentiate it from previous pleadings or amendments;

(2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and

(3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.”

            In addition, under Rule 3.1324(b), a motion to amend a pleading before trial must be accompanied by a separate declaration that specifies the following:

“(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.”

DISCUSSION

            Defendant argues that leave should be denied because (1) the Motion fails to comply with California Rules of Court, rule 3.1324(b); and (2) it will be prejudiced because Plaintiff unreasonably delayed seeking leave to file an amended complaint until after it filed the motion for summary judgment.  In the alternative, Defendant requests that the Court defer ruling on the motion until after the hearing on Defendant’s Motion for Summary Judgment/Adjudication.

California Rules of Court, rule 3.1324(b)

            Defendant argues that the proposed amendment fails to comply with California Rules of Court, rule 3.1324(b) because the declaration accompanying the motion does not say when the facts giving rise to the amended allegations were discovered, or why the request for amendment was not made earlier.  The Court disagrees.

            There are no new substantive facts giving rise to the amendment.  (Romano Decl., ¶ 3).  Rather, as the declaration explains that during settlement negotiations, Plaintiff became aware of Defendant’s theory that Plaintiff’s claims fail because the vehicle was used, not new, when purchased.  (Romano Decl., ¶ 4.)  The declaration further explains that Plaintiff held off filing an amended complaint, because the parties were amidst settlement negotiations, and Plaintiff wanted to keep attorney fees and costs down to help facilitate a resolution.  (Romano Decl., ¶ 5.)  Defendant counters that Plaintiff was made aware of the issue as early as September 2022, as a result of Defendant’s discovery responses and settlement negotiations that occurred during that time.  (Opp. at 3:25-4:11.)  But Defendant does not refute Plaintiff’s assertions that he learned of Defendant’s position for the first time during settlement negotiations, and he delayed filing an amended complaint during the pendency of those negotiations.  Therefore, the Court finds Plaintiff has complied with California Rules of Court, rule 3.1324(b).

Prejudice

            Defendant next argues that it will be prejudiced because Plaintiff unreasonably delayed in moving for leave to file an amended complaint until after Defendant filed its motion for summary judgment.  (Opp. at 4:12-5:14.)  But the cases Defendant cites are distinguishable.

For example, in Duchrow v. Forrest (2013) 215 Cal. App. 4th 1359, 1380, the plaintiff sought to amend the complaint on the fourth day of a five-day trial, after the discovery cut-off date, to drastically expand its request for damages, after damage experts had already done their analyses.  Similarly, in M&F Fishing, Inc. v. Sea-Pac Ins. Managers, Inc. (2012) 202 Cal.App.4th 1509, 1534, one week before trial, the plaintiffs sought to add additional defendants. 

In Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1280, the proposed amendments were inconsistent with the prior complaint, and were barred by the sham pleading doctrine.  And in Champlin/GEI Wind Holdings, LLC v. Avery (2023) 92 Cal.App.5th 218, 224-225, the plaintiff waited until the hearing on the motion for summary judgment to informally request leave to amend. 

            By contrast, here, Plaintiff formally moved for leave to amend three days after Defendant filed its motion for summary judgment, and months before the hearing on said motion.  (See Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1254 [“a plaintiff wishing ‘to rely upon unpleaded theories to defeat summary judgment’ must move to amend the complaint before the hearing”].)

            Moreover, trial is over six months away, there are no new factual bases underlying the proposed new cause of action.  Therefore, the Court finds that Defendant has not demonstrated prejudice.

 Defer Ruling

            Defendant requests that the Court defer ruling on the Motion for Leave to Amend until after the hearing on its pending Motion for Summary Judgment/Adjudication because nothing changes with respect to its arguments as to the Song-Beverly claim, and if the new pleading renders the summary judgment motion moot, it will waste judicial resources.

            The Court does not see a reason to defer ruling here.  It takes fewer judicial resources to let Plaintiff amend the pleadings now and analyze all summary judgment/adjudication arguments at once, than to review two  separate motions for summary judgment/adjudication.  And because many of the arguments will be the same, Defendant can reassert much of current motion verbatim.

CONCLUSION AND ORDER

            The Court grants Plaintiff’s Motion for Leave to Amend and orders Plaintiff to file and serve the proposed amended complaint on or before August 17, 2023. 

            Plaintiff shall provide notice of the Court’s ruling and file a proof of service regarding the same. 

DATED:  August 3, 2023                                                       ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court