I. BACKGROUND  

Plaintiff Emerson Langlois-Ulrich (“Plaintiff”) filed this action against Defendant Michael Evich Kirsanov (“Defendant”) for damages arising from a motor vehicle incident. Trial is currently set for January 27, 2025.   

Defendant seeks leave to file a First Amended Answer (“FAA”) to Plaintiff’s complaint to include an affirmative defense based on prelitigation settlement of Plaintiff’s claims. The motion was initially denied, without prejudice, due to procedural defects. (Min. Order, Dec. 13, 2023.)  

Preliminary, the Court notes that Plaintiff filed a brief opposition to Defendant’s ex parte application to advance the hearing date, but did not file any separate opposition to the motion itself. Nonetheless, even if it was considered, Plaintiff’s conclusory three sentence statement is insufficient to provide any meaningful opposition to the motion.  

II. MOTION FOR LEAVE TO FILE AMENDED PLEADING  

CCP § 473(a)(1) provides, in relevant part:  “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.”  

“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. Superior Court (1989) 213 Cal.App.3d 1045, 1047.)   

Under CRC Rule 3.1324(a), a motion to amend a pleading shall (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.  

Under CRC Rule 3.1324(b), 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. 

Even if a good amendment is proposed in proper form, a long, unwarranted and unexcused delay in presenting it may be a good reason for denial. In most cases, the factors for timeliness are: (1) lack of diligence in discovering the facts or in offering the amendment after knowledge of them; and (2) the effect of the delay on the adverse party. 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. (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.) Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, or added costs of preparation such as an increased burden of discovery. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488.) 

In this case, Defendant provides that the proposed amendment will include a fourth affirmative defense of compromise settlement based on a settlement entered by the parties on August 4, 2008, and that all other aspects of the Answer remain unchanged. Defendant avers it is necessary and proper, because Defendant is drafting a a motion for summary judgment based on this affirmative defense, but is unable to file the motion until the current Answer includes this affirmative defense. Notably, defense counsel does not provide when this past settlement was discovered. Defense counsel only provides that the filing of the motion was deliberately postponed because the parties were discussing mediation. Nonetheless, Plaintiff provides no meaningful opposition, and the Court finds no prejudice to allow the amendment. Trial is currently set for following year on January 27, 2025.  

III. CONCLUSION 

Based on the foregoing, Defendant’s motion to file a FAA is GRANTED. Defendant is ordered to file a separate copy of the proposed FAA within ten (10) days of the date of this Order. 

Moving party is ordered to give notice.  

PLEASE TAKE NOTICE: 

Dated this 21st day of March 2024