Judge Michael J. Strickroth, Case 2020-01171587 2023-08-07 Tentative Ruling

Judge: Michael J. Strickroth, Case: 2020-01171587, Date: 2023-08-07 Tentative Ruling

Motion for Leave to File Amended Complaint

Plaintiff Mitre & Bevel, Inc.’s (Plaintiff) Motion for Leave to File Amended Complaint (Motion) is GRANTED.

Code of Civil Procedure section 473(a)(1) states: “[t]he 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.”

Additionally, 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. Code Civ. Proc. § 576.

Plaintiff moves for leave to file a Third Amended Complaint pursuant to Code Civ. Proc. sections 473(a) and 576.

Procedural Requirements

A motion to amend a pleading before trial must: (1) include a copy of the proposed amendment or amended pleading; (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, by page, paragraph, and line number, the additional allegations are located. California Rules of Court, rule 3.1324(a).

A separate declaration must accompany the motion and must specify: (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. California Rules of Court, rule 3.1324(b).

Here, the motion includes a discussion of the proposed changes to the SAC on pages 8-10. Further, the Declaration of Daniel J. Kim fulfills the requirements of California Rules of Court, rule 3.1324(b). Therefore, Plaintiff has complied with the procedural requirements for this motion.

Merits

Plaintiff argues leave to amend should be granted because “it inaccurately stated that the landlord refused to take any steps to prevent the inundation of water into Plaintiffs’ premises.” (Motion, 4:24-27.) Specifically, Plaintiff argues that the SAC inaccurately pled Defendant failed to take action to remediate Plaintiffs’ premises for ten days (1) the “claim notes” demonstrate that Defendant had done nothing at any point, not just for ten days and (2) Plaintiff’s counsel relied on the incorrect work of their paralegal for this portion of the SAC. (Motion, 5:1-10.)

In Opposition, Defendant argues Plaintiff’s alleged mistake is a strategic miscalculation and not an excusable error for which relief may be granted under Code of Civil Procedure section 473. (Opposition, 4:2-14.) Additionally, Defendant argues Plaintiff cannot rely on cases which hold that reliance on office staff is grounds to grant leave to amend because the gravamen of Plaintiff’s Motion is that the SAC should have advanced a different argument, not that the wrong argument was inadvertently included. (Opposition, 4:15-5:4.)

The Opposition cites Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 684 that strategic miscalculations do not warrant granting leave to amend. However, Garcia and Vartanian v. Croll (1953) 117 Cal.App.2d 639, 644, both cited in the Opposition, discuss whether relief can be granted under Code of Civil Procedure section 473(b). Here, Plaintiff is moving to amend under Code of Civil Procedure section 473(a). The other cases cited in the Opposition on page 4, such as Parage v. Couedel (1997) 60 Cal.App.4th 1037, also discuss whether a showing is sufficient under Code of Civil Procedure section 473(b). Because Plaintiff is moving for leave to amend under Code of Civil Procedure section 473(a), whether the conduct of Plaintiff’s counsel is sufficiently excusable under Code of Civil Procedure section 473(b) is not at issue.

Next, Defendant’s Opposition argues the Motion must be denied because permitting Plaintiff to amend will prejudice all Defendants. (Opposition, 5:27-6:16.) California courts generally allow great liberality, at all stages of the proceeding, in permitting the amendment of pleadings in order to resolve cases on their merits. IMO Development Corp. v. Dow Corning (1982) 135 Cal. App. 3d 451, 461. This liberality only applies so long as there is no prejudice to the opposing party. Higgins v. Del Faro (1981) 123 Cal. App. 3d 558, 564. Denial of leave to amend is appropriate where “the proposed amendment opened up an entirely new field of inquiry without any satisfactory explanation as to why this major change in point of attack had not been made long before trial.” Estate of Murphy v. Gulf Insurance Co. (1978) 82 Cal. App. 3d 304, 311.

Here, Defendant has not shown it will be prejudiced by allowing Plaintiff to amend. Plaintiff joined a new defendant on 5-8-23, Pacific Commercial Real Estate, and that defendant has not yet appeared in this case. It can be reasonably anticipated this defendant may file motions to challenge the pleadings, require time to take its own discovery, or perhaps file dispositive motions. Further, trial was continued by stipulation to 4-4-24, which leaves time for the parties to conduct additional discovery on the TAC or file an additional motion to strike. While it is possible trial will not go forward on 4-4-24 due to expanding the scope of Plaintiff’s allegations, Defendant has failed to articulate how this possibility alone is sufficient prejudice such that the motion must be denied.

Finally, Defendant argues the motion must be denied pursuant to Code of Civil Procedure section 435.5(e)(1) because Plaintiff is only permitted to amend “three times” in response to a motion to strike “absent an offer to the trial court of additional facts to be pleaded that, if pleaded, would result in a reasonable possibility that the defect can be cured.” (Opposition, 5:15-25.) Defendant argues Plaintiff should have made this offer of proof that they could amend no later than July 18, 2022, at the hearing on Defendant’s Motion to Strike Portions of the Second Amended Complaint. (Id.)

Defendant’s argument is not supported by the language of the statute. Although Code of Civil Procedure section 435.5(e)(1) specifies that Plaintiff should only be allowed to amend “three times” absent a showing that there is a “reasonable possibility” that the defect can be cured, the statute does not have a requirement of when this offer has to be made. Moreover, Plaintiff has made some “offer to the trial court of additional facts” to be pled through this motion because the motion includes a discussion of what changes Plaintiff wants to make to the TAC and a discussion of why Plaintiff thinks these changes are appropriate. Therefore, Defendant’s final argument in support of Opposition fails.

Based on the foregoing, Plaintiff’s motion is GRANTED. Plaintiff is to file the proposed TAC within 10 days of this date. The Court sets a status conference for 1-8-2024, at 8:30 AM, in C15.

Plaintiff to give notice.