Judge Olivia Rosales, Case 20NWCV00566 2022-10-20 Tentative Ruling

Judge: Olivia Rosales, Case: 20NWCV00566, Date: 2022-10-20 Tentative Ruling

Case Number: 20NWCV00566 Hearing Date: October 20, 2022 Dept: SEC

DOMINGUEZ v. AVALOS

CASE NO.: 20NWCV00566

HEARING: 10/20/22

TENTATIVE ORDER

Plaintiff’s Motion for Leave to File a Second Amended Complaint is GRANTED.

Plaintiff to give Notice

This real property action was filed on October 14, 2020. Plaintiff seeks leave to file a Second Amended Complaint (“SAC”) to state a claim for nonexclusive prescriptive easement.

In Opposition, Defendants argues that the instant Motion is untimely, will result in undue prejudice to the Defendants, and that Plaintiff’s proposed amendments fails to properly plead a cause of action and cannot be cured by amendment.

California recognizes “a general rule of…liberal allowance of amendments…” (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 939.) It has also long been recognized that “even if the proposed legal theory is a novel one, ‘the preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.) In light of great liberality employed when ruling on a motion for leave to amend, the court will not normally consider the validity of the proposed amended pleading since grounds for demurrer or motion to strike are premature. Thus, absent prejudice to the opposing party, courts are bound to apply a policy of great liberality in permitting amendments to the complaint “at any stage of the proceedings, up to and including trial.” (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.)

The Court finds that the interests of justice would best be served by allowing Plaintiff the opportunity to adjudicate their claims on the merits. In light of the liberality associated with granting motions for leave to amend, the Court finds that Plaintiff should be afforded the opportunity to make the proposed amendments. Defendant(s) maintain their right to demur, move to strike, or move for summary judgment to the new operative complaint.

The Motion is GRANTED.

The Proposed Second Amended Complaint attached as Exhibit a to the Declaration of Kristin Cable is not deemed filed as of the date of this hearing. Plaintiff is ORDERED to FILE the Second Amended Complaint by no later than 5 days from the date of the Court’s issuance of this Order.