Judge: Serena R. Murillo, Case: 23STCV01461, Date: 2023-08-17 Tentative Ruling
Case Number: 23STCV01461 Hearing Date: August 17, 2023 Dept: 31
TENTATIVE
Plaintiff’s motion for leave to file an amended
complaint is CONTINUED.
Legal Standard
California Code
of Civil Procedure section¿473, subdivision¿(a)(1) provides, in relevant part:
“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.”¿
“This discretion
should be exercised liberally in favor of amendments, for judicial policy
favors resolution of all disputed matters in the same lawsuit.”¿¿(Kittredge
Sports Co. v. Superior Court¿(1989) 213 Cal.App.3d 1045, 1047.)¿
Ordinarily, the court will not consider the validity of the proposed amended
pleading in ruling on a motion for leave since grounds for a demurrer or motion
to strike are premature.¿ The court, however, does have discretion to deny
leave to amend where a proposed amendment fails to state a valid cause of
action as a matter of law and the defect cannot be cured by further
amendment.¿¿(See¿California Casualty General Ins. Co. v. Superior Court¿(1985)
173 Cal.App.3d 274, 281¿(overruled on other grounds by¿Kransco¿v. American
Empire Surplus Lines Ins. Co.¿(2000) 23 Cal.4th 390).)¿
Furthermore, ‘it is
irrelevant that new legal theories are introduced as long as the proposed
amendments “relate to the same general set of facts.” [Citation.]’ ”]; Hirsa, supra, 118
Cal.App.3d at p. 490.) Even
if a good amendment is proposed in proper form, a long, unwarranted and
unexcused delay in presenting it may be a good reason for denial. In most
cases, the factors for timeliness are: (1) lack of diligence in discovering the
facts or in offering the amendment after knowledge of them; and (2) the effect
of the delay on the adverse party. Prejudice exists where the amendment
would require delaying the trial, resulting in loss of critical evidence, or
added costs of preparation such as an increased burden of discovery. (Magpali
v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488.)
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.¿
Discussion
CCP section 1005(b) states: “… all
moving and supporting papers shall be served and filed at least 16 court days
before the hearing.”
There is no proof of service showing
Defendants were served with this motion. As a result, the motion is continued
and Plaintiff is ordered to file proof of service, indicating Defendants were
served with this motion.
Conclusion
Based on the
foregoing, Plaintiff’s motion for leave to file an amended complaint is
CONTINUED. Plaintiff is ordered to file proof of service showing Defendants
were served with this motion.
Moving party is
ordered to give notice.