Judge: Nathan Vu, Case: 30-2022-01298762, Date: 2023-08-07 Tentative Ruling

Motion for Leave to Amend

Defendants Gerald Gene Snow’s and Linda Snow’s Motion for Leave to File an Amended Answer is GRANTED.

Defendants Gerald Gene Snow and Linda Snow are ORDERED to file and serve the Amended Answer attached as Exhibit A to the Declaration of Jasmine H. Ng by August 11, 2023.

Defendants Gerald Gene Snow and Linda Snow request leave to file an amended answer that adds the affirmative defense of sudden illness.

Standard for Leave to Amend

The Civil Procedure Code provides that:

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.

(Code Civ. Proc., § 473, subd. (a)(1).)

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.  (See 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.)

As the Court of Appeal has explained:

[T]rial courts should be guided by two general principles: (1) whether facts or legal theories are being changed and (2) whether the opposing party will be prejudiced by the proposed amendment. Frequently, each principle represents a different side of the same coin: If new facts are being alleged, prejudice may easily result because of the inability of the other party to investigate the validity of the factual allegations while engaged in trial or to call rebuttal witnesses. If the same set of facts supports merely a different theory – for example, an easement as opposed to a fee – no prejudice can result.

(City of Stanton v. Cox (1989) 207 Cal.App.3d 1557, 1563.)

With respect to the first requirement, “[t]he basic rule applicable to amendments to conform to proof is that the amended pleading must be based upon the same general set of facts as those upon which the cause of action or defense as originally pleaded was grounded.” (Union Bank v. Wendland (1976) 54 Cal.App.3d 393, 400-401.) In other words, “[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.)

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.) However, 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.

In this case, Defendants are not attempting to plead new facts, but only a new legal theory of defense. Further, the amendment will not cause undue prejudice as the case is only recently become at issue and trial is not set more than 8 months.

Further, Defendants have complied with the procedural requirements for a motion for leave to amend. (See Declaration of Jasmine H. Ng, ¶¶ 3-4, 7-8, 11, 13-15, Exh. A.)

Plaintiffs Rosa Elena Tomazic, Alia Isabelle Tomazic, and Todd William Tomazic did not file an opposition or otherwise identify any basis upon which to deny the instant Motion for Leave to File An Amended Answer. The failure to address or oppose an issue in a motion constitutes a waiver on that issue. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 288; see also Wright v. Fireman’s Fund Ins. Companies (1992) 11 Cal.App.4th 998, 1011 [“it is clear that a defendant may waive the right to raise an issue on appeal by failing to raise the issue in the pleadings or in opposition to a . . . motion”].)

Defendants shall give notice of this ruling.