Judge Michael E. Whitaker, Case Number: 22SMCV02568, Date: 2023-08-03 Tentative Ruling

Judge: Michael E. Whitaker, Case: 22SMCV02568, Date: 2023-08-03 Tentative Ruling

The settlement of a prior lawsuit between Plaintiff Adam Bold (“Plaintiff”) and Defendant Emily Bold (“Defendant”) required, among other things, that Defendant return to Plaintiff various Apple electronic devices which were used to access Plaintiff’s online accounts, including an iPad in a butterfly case that was used by their young daughter. (Motion at pp. 2-3.) On August 3, the Court granted Plaintiff leave to amend the complaint to add two short statements that “Defendant breached other terms of the Settlement Agreement.” (August 3, 2023 Minute Order.)

Following an IDC on September 11, 2023, Plaintiff now seeks to amend the complaint to change paragraphs 21, 22, and 39 from referencing Plaintiff’s “accounts” generally to specifying Plaintiff’s “Google, Apple and Amazon accounts and no other accounts.”

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).)

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:

The Proposed Fourth Amended Complaint clarifies certain allegations in the operative Third Amended Complaint referring to Mr. Bold’s “private accounts and information.” These amendments are necessary and proper to narrow the scope of this case and streamline it, as discussed by this Court at the parties’ September 11, 2023 IDC. Further, because Mr. Bold brings these amendments just a few weeks after the parties’ September 11, 2023 IDC, where they were discussed by this Court, Mr. Bold has not been dilatory in seeking to bring the instant motion.

(Morris Decl. ¶ 11.) Plaintiff attached copies of the Third Amended Complaint, the Proposed Fourth Amended Complaint, and a redline showing the differences between the two versions. Therefore, Plaintiff has satisfied the procedural requirements of Rule 3.1324.

Defendant opposes the motion, arguing that the proposed amendments are not “in furtherance of justice” because they are merely a “ploy” for Plaintiff to avoid the outstanding discovery requests Defendant has already propounded regarding Plaintiff’s other electronic accounts, while “continu[ing] to conduct this very discovery” against Defendant, seeking information about Defendant’s access of Plaintiff’s other online accounts, including his Arlo and email accounts. Defendant argues the outstanding discovery she has propounded regarding Plaintiff’s other online accounts is relevant not only to Plaintiff’s current claims, but also to Defendant’s affirmative defenses of unclean hands, waiver, estoppel, and laches.

Defendant also argues that the proposed amendments would not limit discovery in any event, because the proposed amended complaint still alleges Defendant breached and/or violated “other terms and conditions of the Settlement Agreement.” Moreover, Defendant argues this is an attempt by Plaintiff to limit Defendant’s ability to conduct discovery, while continuing his own fishing expedition, based on these other “vague allegations of misconduct.”

Code of Civil Procedure section 2017.010 provides, “Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action.” (Emphasis added.) Therefore, to the extent Defendant’s outstanding discovery relates to her affirmative defenses, or to Plaintiff’s claims that Defendant breached “other terms and conditions of the Settlement Agreement,” such information would presumably still be discoverable.

Conversely, to the extent such information is no longer relevant to the lawsuit, neither Plaintiff nor Defendant is entitled to such discovery. Therefore, the appropriate scope of discovery would be limited and/or broadened as to both Plaintiff and Defendant equally. As such, the Court finds that Defendant will not be prejudiced by the proposed amendment.

As for Defendant’s argument that the scope of discovery would not be limited at all by the proposed amendments, the proposed amendments do limit the scope of Plaintiff’s fraud action against Defendant. For that reason, it does narrow the issues.

Finally, Defendant argues that Plaintiff was dilatory in bringing the proposed amendment, because Plaintiff could have originally pleaded a narrower claim for fraud. The Court does not find that Plaintiff was dilatory here. Plaintiff has promptly moved to amend the complaint to narrow the scope of the fraud claim, following the parties’ IDC in September.

For the foregoing reasons, the Court grants Plaintiff’s motion for leave to amend the complaint. Plaintiff shall file and serve the proposed fourth amended complaint on or before November 7, 2023, and file a proof of service regarding the same

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

[1] The declaration attached to the Motion is unsigned. However, Plaintiff attached a signed version of the declaration to the Reply brief, which differed only in that it added a paragraph to explain that an unsigned version was inadvertently filed with the moving papers. Because Defendant did not raise the issue in the opposition, and because the signed version was identical to the original version, except for the additional paragraph explaining the mistake, the Court accepts and considers the signed version of the declaration attached to the Reply.

DEPARTMENT	207
HEARING DATE	October 24, 2023
CASE NUMBER	22SMCV02568
MOTION	Motion for Leave to Amend Complaint
MOVING PARTY	Plaintiff Adam Bold
OPPOSING PARTY	Defendant Emily Bold