Judge: Nathan R. Scott, Case: Balboa Capital v. Jayachandra, Date: 2022-08-05 Tentative Ruling

Defendant and Cross-complainant Paul D. Jayachandra M.D., P.A. and Paul D. Jayachandra’s motion for leave to amend is granted.  (See Code Civ. Proc., § 473, subd. (a); Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761 [applying “‘a policy of great liberality in permitting amendments’”].)

Cross-complainants shall have leave to separately e-file the proposed Fourth Amended Cross-Complaint (Ex. A to moving papers), which will be deemed served upon filing.

Separate e-filing is critical to ensure the pleading is properly indexed in the court’s electronic filing system.

Balboa has not shown the 4AXC is a sham pleading that tries to remedy fatal allegations by simply omitting them.  (See Hahn v. Mirda (2007) 147 Cal.App.4th 740, 751.)  “The doctrine is not intended to prevent honest complainants from correcting erroneous allegations or to prevent the correction of ambiguous facts.”  (Ibid.)

Thus, it is not a sham for the 4AXC to allege new facts and theories in support of its agency claim.  (See 4AXC ¶¶ 59-63.)  While Balboa asserts the 4AXC still fails to allege a partnership or agency relationship between it and Cynosure, and wrongly asserts defenses as claims, these assertions are better handled at a later stage.  (See Atkinson, supra, 109 Cal.App.4th at p. 761; see also Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.)

The court is aware this is a fourth amended cross-complaint.  Whether cross-complainants will be granted further leave to amend if the 4AXC proves defective is a question for another day.

Cross-defendants shall give notice