Judge: Michael E. Whitaker, Case: 22SMCV02249, Date: 2023-08-04 Tentative Ruling

Case Number: 22SMCV02249    Hearing Date: September 13, 2023    Dept: 207

TENTATIVE RULING

BACKGROUND

This case arises from a dispute over Defendant Martin Salgado’s (“Defendant”) installation of wood flooring in Plaintiff Schuyler Merritt Moore’s (“Plaintiff”) home.  Plaintiff originally filed the complaint, bringing two causes of action for breach of contract and negligence.  Plaintiff previously moved for summary judgment, arguing, among other things, that Defendant lacked a valid contractor’s license when he installed the flooring in Plaintiff’s home.  The Court denied Plaintiff’s motion for summary judgment because Plaintiff failed to establish the elements of his breach of contract and negligence claims, and Plaintiff had not alleged a cause of action for disgorgement of compensation obtained without a contractor’s license under Business and Professions Code section 7031, subdivision (b).  (June 29, 2023 Minute Order.)  The Court also noted that the evidence submitted in support of the unpled Business & Professions Code claim was insufficient.  (Ibid.)

Plaintiff now seeks leave to amend the complaint to eliminate both original causes of action for breach of contract and negligence and to replace them with a single cause of action for disgorgement of compensation obtained without a valid contractor’s license pursuant to Business and Professions Code section 7031, subdivision (b). 

Defendant has not opposed Plaintiff’s motion.

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

            Plaintiff has included a copy of the proposed amended complaint, has stated what will be deleted and what is proposed to be added.  Plaintiff’s declaration acknowledges the effect of the amendment will be to change the theory of liability from breach of contract and negligence to violation of Business and Professions Code section 7031, subdivision (b).  (Moore Decl. ¶ 1.a.) 

Plaintiff further contends the amendment is necessary and proper because “it vastly simplifies this case by reducing the cause of action to one easily provable claim” which “saves judicial time and expedites resolution of the case, since Plaintiff intends to bring a Motion for Summary Judgment based on the First Amended Complaint.”  (Moore Decl. ¶ 1.b.)

            Plaintiff also explains he did not discover the fact that Defendant lacked a valid contractor’s license to install wood flooring until after the original complaint was filed, that Plaintiff became aware of this issue during “prior hearings” when Defendant made statements to that effect, and Plaintiff subsequently independently verified that Defendant lacked the requisite license.  (Moore Decl. ¶ 1.c.)

            Finally, Plaintiff explains he is requesting leave to amend the complaint now because of the Court’s denial of his prior motion for summary judgment.  (Moore Decl. ¶ 1.d.)

            The Court finds Plaintiff’s explanation about when he discovered the licensing issue vague and inconsistent.  In connection with Plaintiff’s prior motion for summary judgment, Plaintiff indicated he discovered Defendant lacked a valid contractor’s license when Defendant admitted as much at the March 2023 hearing on Plaintiff’s first motion for summary judgment.  (See April 3, 2023 Moore Decl. ¶ 4.)  But the Court has already noted that this statement does not appear in the record for that hearing.  (June 29, 2023 Minute Order.) 

Moreover, this Court previously noted that Plaintiff’s contention that he first discovered Defendant lacked a contractor’s license at the March 2023 hearing did not comport with the fact that Defendant first raised the issue in his original Motion for Summary Judgment, which he filed on December 28, 2022, and which indicated that he searched the contractor license database on December 25, 2022.  (See August 4, 2023 Minute Order.)  

Instead of addressing the Court’s prior concerns, Plaintiff vaguely reiterates his contention that he first discovered that Defendant lacked a contractor’s license based on comments Defendant made at “prior hearings,” which Plaintiff subsequently confirmed through independently searching the contractor license database online.  But the first hearing held in this case was the March 2023 hearing on Plaintiff’s first motion for summary judgment.  Thus, any statements Defendant may or may not have made at “prior hearings” necessarily occurred after Plaintiff’s December 25, 2022 database search.

            Thus, it appears from the record Plaintiff first discovered the issue while doing independent research sometime on or before December 25, 2022, which may or may not have been confirmed by statements Defendant made at subsequent hearings. 

            But these databases were available to Plaintiff both at the time he hired Defendant and at the time he filed the original complaint.  Plaintiff has offered no justification as to why he did not include these allegations in the original complaint.  

Moreover, trial, which has already been continued twice, is currently set for October 23, 2023.  Thus, amending the complaint by “replac[ing] the original Complaint in its entirety other than the description of the parties” to change the theory of liability on the eve of trial would necessarily prejudice Defendant.  Indeed, accommodating Plaintiff’s request to amend the complaint, allowing Defendant to file another answer, permitting time to conduct additional discover on the new cause of action, and allowing Plaintiff to file yet another motion for summary judgment, would necessarily delay the trial and increase Defendant’s discovery burden and expense. 

CONCLUSION AND ORDER

Because Plaintiff has not provided a justifiable explanation as to why the proposed Business and Professions Code related cause of action was not originally pled or why Plaintiff did not seek to amend the complaint earlier, the Court denies Plaintiff’s Motion for Leave to File First Amended Complaint.   

The Clerk of the Court shall provide notice of the Court’s ruling.

DATED:  September 13, 2023                                               ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court