Judge: Michael P. Linfield, Case: 21STCV39072, Date: 2023-04-24 Tentative Ruling
Case Number: 21STCV39072 Hearing Date: April 24, 2023 Dept: 34
SUBJECT: Motion for
Leave to Amend First Amended Complaint
Moving Party: Plaintiff
U.S. Specialty Insurance Company
Resp. Party: Defendants Ethel Newton and July Curd
Plaintiff’s Motion for Leave to Amend First
Amended Complaint is DENIED.
BACKGROUND:
On October
22, 2021, Plaintiff U.S. Specialty Insurance Company filed its Complaint
against Defendants David B. Newton, July Curd, and Ethel L. Newton on causes of
action arising from bonds undertaken for a conservatorship.
On January
18, 2022, by request of Plaintiff, the Clerk’s Office entered default on
Defendant July Curd.
On March 2,
2022, Defendant July Curd filed her Answer.
On March 2,
2022, Defendant Ethel Newton filed her Answer.
On April 29,
2022, by request of Plaintiff, the Clerk’s Office entered default on Defendant
David B. Newton.
On
March 29, 2023, Plaintiff filed its Motion for Leave to File First Amended
Complaint.
On April 12,
2023, Defendants Ethel Newton and July Curd, in propria persona, filed
their Opposition. In support of their Opposition, they concurrently filed: (1)
Declaration of Ethel Newton; (2) Declaration of July Curd; and (3) two Proofs
of Service.
On April 17,
2023, Plaintiff filed its Reply.
ANALYSIS:
I.
Legal Standard
The court may, in furtherance of justice and on any proper terms, allow
a party to amend any pleading. (Code Civ. Proc., § 473, subd. (a)(1); Branick v. Downey Savings & Loan
Association (2006) 39 Cal.4th 235, 242.)
The court may also, in its discretion and 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. (Code Civ. Proc., § 473, subd. (a); Branick, supra, 39 Cal.4th at 242.)
“This discretion should be exercised liberally in favor of amendments,
for judicial policy favors resolution of all disputed matters in the same
lawsuit.” (Kittredge Sports Co. v. Super.
Ct. (1989) 213 Cal.App.3d 1045, 1047.) Leave to amend is thus liberally
granted, provided there is no statute of limitations concern. (Kolani v. Gluska (1998) 64 Cal.App.4th
402, 411.) The Court may deny the plaintiff’s leave to amend if there is
prejudice to the opposing party, such as delay in trial, loss of critical
evidence, or added costs of preparation. (Id.)
Under California Rules of Court, rule 3.1324, a motion to amend a
pleading before trial must (1) include a copy of the proposed amendment or
amended pleading, 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. (Cal. Rules of Court, rule
3.1324(a).) A separate supporting
declaration specifying (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 reason why the request for amendment
was not made earlier must accompany the motion. (Id., rule 3.1324(b).)
II.
Discussion
A. Rules
of Court
Plaintiff complied with California Rules of
Court, rule 3.1324.
First, Plaintiff submitted
a copy of the proposed amended pleading (Motion, Ex. 1).
Second, Plaintiff submits Declaration of Amber N. Kim, which includes a
list of exactly all the items that would be deleted and added, as well as
exactly where those deletions and additions are located. (Motion, Decl. Kim, ¶
4.)
Finally, the Declaration of Amber N. Kim describes the effect of the amendment (to increase the amount of
damages alleged, as well as alleging violation of another part of the contract
at issue), why the amendment is necessary and proper (to include all
allegations related to the breach of contract causes of action in one action),
when the facts giving rise to the amendments were discovered (on March 28,
2023), and the reason why the request for amendment was not made earlier
(because it became clear to Plaintiff that Defendants would not pay premiums or
post collateral) (Motion, Decl. Kim, ¶¶ 5–7.)
B.
The
Parties’ Arguments
In support of its Motion, Plaintiff argues: (1) that the Court has
discretion to grant a party’s motion to amend its pleadings; (2) that the
proposed amendment would not prejudice Defendants; and (3) that it is in
furtherance of justice and is proper to grant Plaintiff’s Motion. (Motion, pp.
3:20–21, 4:17, 5:16–17.)
As part of its Motion, Plaintiff requests a trial postponement since
Plaintiff would have to re-serve Defendant David B. Newton, who defaulted on
April 29, 2022. (Motion, p. 5:10–15.)
Defendants Ethel Newton and July Curd oppose the Motion, arguing that
the Motion should be denied because it is made in bad faith and causes
prejudice. These Defendants cite Landis v. Superior Court (1965) 232
Cal.App.2d 548 and Forman v. Davis (1962) 371 U.S. 178 in support of
their argument.
Plaintiff argues in its Reply: (1) that the Opposition is untimely by
one day; (2) that Plaintiff’s added theory of recovery was made necessary by
circumstances outside of Plaintiff’s control; (3) that there is no bad faith in
bringing the proposed amendment; and (4) that there is no prejudice to
Defendants. (Reply, pp. 2:11, 2:24–25, 3:10, 4:2.)
C.
Timeliness
of the Opposition
To the extent that the Opposition is late filed, the Court still
chooses to consider it.
“Providing
access to justice for self-represented litigants is a priority for California
courts.” (California Rules of Court,
rule 10.960, subdivision (b).)
“[W]hen a litigant is
self-represented, a judge has the discretion to take reasonable steps,
appropriate under the circumstances and consistent with the law and the canons,
to enable the litigant to be heard.” (See also ABA Model Code of Jud. Conduct,
canon 2, rule 2.2, com. 4 [“[i]t is not a violation of this Rule [regarding
impartiality and fairness] for a judge to make reasonable accommodations to
ensure pro se litigants the opportunity to have their matters fairly heard”].)
The canons and commentary thus provide a path to ensure a self-represented
litigant can be fairly heard on the merits while the court maintains its
impartiality and does not assume (or appear to assume) the role of advocate or
partisan. (See Cal. Code Jud. Ethics, canon 3 [“a judge shall perform the
duties of judicial office impartially, competently, and diligently”].)” (Holloway v. Quetel (2015) 242
Cal.App.4th 1425, 1434.)
D.
Prejudice
and Bad Faith
Plaintiff brought this litigation in October 2021. It is now April
2023, and trial is scheduled for May 2023. It is difficult for the Court to see
how this last-minute addition of a new theory of recovery a month before trial
would not be prejudicial to Defendants, who are litigating in propria
persona.
Defendants have already been required to litigate for 18 months at
their own expense.
Further, Plaintiff is the party who moved the Court six months ago on
an ex parte basis for a trial continuance. The Court granted Plaintiff’s
ex parte application at that time. However, the Court made clear at that
time its stance on additional continuances: “No further continuances allowed.”
(Minute Order dated October 27, 2022, p. 1.) The Court has not been presented
with any evidence that would support a further continuance in this matter. Further,
it does not appear possible to grant this motion and still hold the trial on
May 31, 2023
Because there would be prejudice to Defendants by granting the
amendment, the Court does not reach the question of whether this Motion was
filed in bad faith.
The Court DENIES the Motion on the
grounds that this amendment would prejudice Defendants. (Kolani, supra, at 411.)
III.
Conclusion
Plaintiff’s Motion for Leave to Amend First
Amended Complaint is DENIED.