I. BACKGROUND  

Plaintiff Nancy Bates (“Plaintiff”) filed this action against defendants Pamela Rosenberg, Florence Rosenberg, Clovis Village Shopping Center, Kor Design Build, Inc., Paz Josefzon, CID Builders & Developers Inc., and Does 1 to 50 for injuries arising from a trip and fall into a pool after Plaintiff’s right foot was caught in an uncovered hole used as a pool skimmer. Trial is currently set for September 11, 2024. 

At this time, Plaintiff seek leave to file a First Amended Complaint (“FAC”) to add additional allegations, and two causes of action for respondeat superior/vicarious liability, and negligent supervision, hiring, or retention.  

In opposition, defendants Clovis Village Shopping Center, Pamela Rosenberg, and Florence Rosenberg (“Defendants”) argue that the motion fails to conform with CRC, Rule 3.1324, and that the proposed amendments were not newly discovered facts. Defendants argue they will be prejudiced by the additions because it will necessitate a delay of the upcoming trial to conduct discovery on the issue.  

In reply, Plaintiff provides that discovery should be reopened to allow further discovery pursuant to a new trial date.  

II. MOTION FOR LEAVE TO FILE FAC  

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.) 

Defendant argues that the operative complaint is a three-page Judicial Council form complaint, and that the moving papers’ description of the proposed additions and its location do not match the actual complaint. Indeed, the proposed FAC is pleading in a different format. However, the first and second causes of action contained in the proposed FAC for general negligence and premises liability appear to be substantively the same as it was in the form complaint. Nothing in the code limits Plaintiff to re-using a form complaint initially chosen, especially when Plaintiff has specified the additions.  

Nonetheless, Defendants are correct that the motion does not comply with subsection (b) of CRC Rule 3.1324. 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. Here, the supporting declaration fails to specify any of the aforementioned information for the Court’s evaluation.  

III. CONCLUSION 

Accordingly, Plaintiff’s motion for leave to file a FAC is denied without prejudice.   

Moving party is ordered to give notice.  

PLEASE TAKE NOTICE: 

Dated this 6th day of June 2024