Judge: Nathan Vu, Case: 2022-01253452, Date: 2022-12-12 Tentative Ruling
Please Note: The hearing on this matter is scheduled for 8:30 A.M.
Motion for Leave to Amend
Defendant Jay P. Erb’s motion for leave to file an amended answer to first amended complaint is GRANTED.
The Court STRIKES the First Amended Answer of Defendant Jay P. Erb to Verified First Amended Complaint (Proposed) filed 10/05/2022 (ROA #162).
Defendant Jay P. Erb shall file and serve a verified amended answer to the Verified First Amended Complaint within 10 days of this ruling.
Defendant Jay P. Erb moves for leave to amend the Answer of Defendant Jay P. Erb to Verified First Amended Complaint (Answer) to add denials to certain paragraphs of the Verified First Amended Complaint (FAC). Defendant Erb also seeks leave to file the amended answer.
Standard for Leave to Amend Pleadings
Leave to amend should be granted liberally at all stages of the proceedings in order to accomplish substantial justice for both parties and to resolve cases on their merits. (Code Civ. Proc., § 473, subd. (a); Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 488-489; IMO Development Corp. v. Dow Corning (1982) 135 Cal.App.3d 451, 461.) ”If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend . . . .” (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530, citations and quotations omitted.)
Prejudice that may support denying amendment includes “delay in trial, loss of critical evidence, or added costs of preparation.” (Solit v. Tokai Bank, Ltd. New York Branch (1999) 68 Cal.App.4th 1435, 1448.) Nonetheless, “[t]he power to permit amendments is interpreted very liberally as long as the plaintiff does not attempt to state facts which give rise to a wholly distinct and different legal obligation against the defendant.” (Herrera v. Superior Court (1984) 158 Cal.App.3d 255, 259.)
It is “an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.) It is also an abuse of discretion to refuse amendment where that “results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense.” (Morgan v. Superior Court, supra, 172 Cal.App.2d at p. 530.) This is true even if leave to amend is sought as late as the time of trial. (Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565.)
Under California Rules of Court 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 California Rule of Court 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.
Merits
Here, Plaintiffs Michelle Arlene Talley Ellsworth, Christian Horner Talley, Christopher Horner Talley, Denise Suzanne Talley Rall, and Julie Ann Talley Allen have not filed an opposition to the motion for leave to amend. However, in their reply to the oppositions to their motion to deem as admitted, Plaintiffs argue that Defendant Erb has failed to comply with the requirements of Rules of Court Rule 3.1324.
The court finds that Defendant Erb has met the requirements of subdivision (a) of Rule 3.1324. Defendant Erb fails to attach the proposed amended answer to his motion for leave to amend papers, but he did file the amended answer with the court and served it on Plaintiffs. Although the proposed amended answer should not have been filed because leave had not been granted, the purposes of Rule 1.1324(a) – to allow the court and opposing party to review the proposed amended pleading – have been met. Defendant Erb also explained that no allegations have been deleted from the answer and stated that allegations had been added to Paragraphs 1, 3, 5, and 8 that inserted additional denials.
Defendant Erb also satisfies the requirements of subdivision (b) of Rule 3.1324. Counsel for Defendant Erb explains that the effect of the amendments is to add denials of certain paragraphs of the FAC that were not denied in the initial Answer.
Defendant Erb’s counsel also explained that he initially thought that the paragraphs that were not denied were not material to Defendant Erb’s defense. However, after hearing from Plaintiffs’ counsel and conferring with counsel for Defendant Asuncion Orteza on 09/30/2022, Defendant Erb’s counsel determined that the answer should be amended to deny all the paragraphs of the FAC. Thus, the motion for leave to amend could not have been brought any earlier.
Finally, Defendant Erb’s counsel stated that the amendments was necessary and proper “in order to avoid or resolve any dispute between the Parties as to the materiality of the subject allegations” and “to bring all allegations clearly into issue.”
Although Plaintiffs also asserted that they had bee prejudiced by Defendant Erb’s “delay”, they did not state what this delay was or how they were prejudiced. Nor can the court discern any undue prejudice to Plaintiffs. To the contrary, allowing the amendments will allow the parties to have their claims and defenses decided on the merits, rather than by default because a defendant fails to respond to an allegation of the complaint. If the court denied leave to amend, Defendant Erb could be deprived of a meritorious defense. Under these circumstances, the court must grant the motion for leave to amend.
However, as noted above, Defendant Erb improperly filed the First Amended Answer of Defendant Jay P. Erb to Verified First Amended Complaint (Proposed) (Proposed Amended Answer) prior to obtaining leave of court. Further, the Proposed Amended Answer is not verified although the FAC is verified. (See Code Civ. Proc., § 446, subd. (a) [“When the complaint is verified, the answer shall be verified.”].) Thus, the court shall strike the Proposed Amended Answer and Defendant Erb shall file and serve an amended answer which is verified.
Motion to Deem as Admitted
Plaintiffs Michelle Arlene Talley Ellsworth’s, Christian Horner Talley’s, Christopher Horner Talley’s, Denise Suzanne Talley Rall’s, and Julie Ann Talley Allen’s motion to deem as admitted is DENIED in its entirety.
Plaintiffs Michelle Arlene Talley Ellsworth, Christian Horner Talley, Christopher Horner Talley, Denise Suzanne Talley Rall, and Julie Ann Talley Allen (Plaintiffs) move that certain allegations in the First Amended Complaint (FAC) be deemed as admitted as to Defendant Jay P. Erb because Defendant Erb did not answer these paragraphs in his initial Answer.
Plaintiffs also move that certain statements in Defendant Erb’s declarations dated 07/08/2022 be deemed inadmissible because the statements are inconsistent with the admitted allegations.
Civil Procedure Code section 431.20(a) provides that “[e]very material allegation of the complaint or cross-complaint, not controverted by the answer, shall, for the purposes of the action, be taken as true.” (Code Civ. Proc., § 431.20, subd. (a).) This is typically applied in a case involving a default, where no evidence is required to establish liability. (See Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 883–884.)
Here, the Court has granted Defendant Erb’s motion for leave to file an amended answer that responds to all of the allegations of the FAC. Thus, there is no basis upon which to deem any of the allegations of the FAC as admitted.
Plaintiffs argue that the motion to deem as admitted should be granted even if Defendant Erb amends his answer. Plaintiffs assert that an amended pleading that contradicts facts alleged in an earlier pleading is nevertheless subject to challenge. However, Defendant Erb’s amended answer will not directly contradict his initial Answer; the amended answer only adds denials to paragraphs of the FAC that were neither admitted nor denied in the initial Answer.
Further, being “subject to challenge” is not the same as being “deemed as admitted”. Plaintiffs might be allowed to challenge a pleading by pointing, for example, to the fact that the initial Answer does not contain a denial that can be found in the amended answer. However, that does not mean the court must conclusively treat an allegation of the FAC as being deemed admitted and in essence, act as of the denial contained in the amended answer never existed.
The court previously denied Plaintiffs’ request that certain statements in Defendant Erb’s declarations dated 07/08/2022 be deemed inadmissible. (See ROA #177.)
Defendant Erb shall give notice of this ruling.