Judge Olivia Rosales, Case VC066597 2022-09-22 Tentative Ruling

Judge: Olivia Rosales, Case: VC066597, Date: 2022-09-22 Tentative Ruling

Case Number: VC066597 Hearing Date: September 22, 2022 Dept: SEC

ASAWA v. ALL AMERICAN DESIGN

CASE NO.: VC066597

HEARING: 09/22/22

TENTATIVE ORDER

Plaintiff’s Motion for Leave to File a Fifth Amended Complaint is DENIED.

Opposing Party to give Notice.

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.” (emphasis added.) (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.)

Notwithstanding the liberality commonly associated with granting leave to amend, Plaintiff’s Motion is DENIED. This action was field on September 26, 2017. Trial is currently set for November 3, 2022. Now, almost five years later—Plaintiff seeks to add facts to support the fraud claim; add a cause of action for elder abuse; and rejoin a previously dismissed defendant. Plaintiff sates that these amendments could not have been brought sooner because the facts were not discovered until after the most recent MSC was held.

The changes to the operative pleading are significant, and the five-year statute is looming. The Court finds that Defendants would be severely prejudiced by granting leave to amend at this stage in this the litigation—discovery and the status of the pleadings would need to be reopened.

The Motion is DENIED.