I. BACKGROUND  

Plaintiff Samuel Carcamo (“Plaintiff”) filed this action against defendants Anahid Terjimanian and Does 1 to 20 for injuries arising from Plaintiff falling off a ladder. Plaintiff filed an amendment to complaint naming Shahe Terjimanian as Doe 1, 

At this time, Plaintiff seek leave to file a First Amended Complaint (“FAC”) to add a third cause of action for Uninsured Employer & Negligence Pursuant to California labor Code 3700 & 3706, and fourth cause of action for negligence per se, in addition to seeking damages.  

Anahid Terjimanian and Shahe Terjimanian (“Defendants”) oppose the motion. As of April 11, 2024, no reply was filed. 

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.) 

Defendants’ opposition contests the merits of the proposed allegations and causes of action. However, ordinarily, the court will not consider the validity of the proposed amended pleading in ruling on a motion for leave since grounds for a demurrer or motion to strike are premature. As long as the proposed amendment, on its face, states a valid cause of action as a matter of law, or any defects can be cured by further amendment, the Court will not consider premature arguments contesting the truth of the allegations. Further, any contentions requiring the consideration of evidence, that are not judicially noticeable, is outside the scope of this motion.   

However, Plaintiff’s motion is denied for failure to comply with the requirements of California Rules of Court, Rule 3.1324. Plaintiff provides the proposed FAC, but does not state where the proposed allegations are to be added, by page, paragraph, and line number or, in the alternative, provide a red-lined copy. (CRC Rule 3.1324(a).) Additionally, CRC Rule 3.1324(b) requires a separate declaration accompanying the motion, which 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. No such declaration was provided in conjunction with the moving papers. 

III. CONCLUSION 

Accordingly, Plaintiff’s motion is denied without prejudice.   

Plaintiff is ordered to give notice.  

PLEASE TAKE NOTICE: 

Dated this 17th day of April 2024