Judge: Peter A. Hernandez, Case: 22PSCV00595, Date: 2023-10-26 Tentative Ruling
Case Number: 22PSCV00595 Hearing Date: October 26, 2023 Dept: K
The hearing on Defendants/Cross-Complainants
Ta-Chung Han’s and Linlin Zhang’s
Motion for Leave to
File Amended Answer is CONTINUED to December 8, 2023 at 9:00 a.m. [see below].
Background
“The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading…” (Code Civ. Proc., § 473, subd. (a)(1); and see § 576 [“Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order”].)
“[T]he trial court has wide discretion in allowing the amendment of any pleading.” (Bedolla v. Logan & Frazer (1975) 52 Cal.App.3d 118, 135.) “[I]t is irrelevant that new legal theories are introduced as long as the proposed amendments relate to the same general set of facts.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048 [quotation marks and citation omitted].) “[E]ven 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.” (Id. [quotation marks and citation omitted].) With that said, “the failure of a proposed amendment to state facts sufficient to constitute a cause of action or defense may support an order denying a motion to amend.” (California Casualty Gen. Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 280, disapproved of on other grounds in Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390)
Courts must apply a policy of great liberality in permitting amendments to pleadings at any stage of the proceedings, up to and including trial, when no prejudice is shown to the adverse party. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) However, “even if a good amendment is proposed in proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial. . . denial may rest upon the element of lack of diligence in offering the amendment after knowledge of the facts, or the effect of the delay on the adverse party.” (Roemer v. Retail Credit Co. (1975) 44 Cal.App.3d 926, 940.)
Also, “[a] motion to amend a pleading before trial must: (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.” (Cal. Rules of Court (“CRC”), rule 3.1324, subd. (a).)
Additionally, “[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.” (CRC Rule 3.1324, subd. (b).)
Discussion
Han and Zhang (collectively, “Defendants”) move the court for leave to amend their respective answers to include one additional affirmative defense of Statute of Limitations.
The “Notice of Motion and Motion for Leave to File Defendants’ Amended Answer to Plaintiff’s Complaint” indicates that it was “Filed Concurrently with Memorandum of Points and Authorities; Declaration of Long Z. Liu Esq. in Support Thereof; [Proposed] Amended Answer.” (Emphasis added). The court, however, does not appear to be in receipt of the proposed amended answer. The proof of service accompanying the motion reflects service of the following:
“1. NOTICE OF MOTION AND
MOTINO [sic] FOR LEAVE TO FILE DEFENDANTS' AMENDED ANSWER TO PLAINTIFF'S
COMPLAINT 2. DECLARATION OF LONG Z. LIU, ESQ.” The proof of service makes no
reference to service of any proposed amended answer. The foregoing omission
renders the instant motion non-compliant with California Rules of Court Rule
3.1342, subdivision (a)(1).
The court is inclined to continue the hearing to December 8, 2023 at 9:00 a.m., based on the above omission. Counsel for Defendants is instructed to lodge a copy of the proposed amended answer with the court and to serve a copy of same upon Plaintiff within five calendar days from the date of the instant hearing.