Motion for Leave to Amend filed by Plaintiff Donald Bush

TENTATIVE

Plaintiff’s motion for leave to amend the complaint is GRANTED.

Legal Standard

Code of Civil Procedure section 474 states, in relevant part: “When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly….”  (Code Civ. Proc. § 474.)

“‘The phrase “ignorant of the name of a defendant” is broadly interpreted to mean not only ignorant of the defendant's identity, but also ignorant of the facts giving rise to a cause of action against that defendant.”  [Citations.]  ‘“[T]he relevant inquiry when the plaintiff seeks to substitute a real defendant for one sued fictitiously is what facts the plaintiff actually knew at the time the original complaint was filed.”’ [Citation.]”  (San Diego Navy Broadway Complex Coal. v. Cal. Coastal Comm’n (2019) 40 Cal. App. 5th 563, 579.)  For a defendant to be added as a Doe defendant, the plaintiff must have been genuinely ignorant of the proposed defendant’s identity and the facts that give rise to the cause of action against the proposed defendant.  (Id. at 580-581.)

Although section 474 does not specify how and in what manner an amendment to a complaint to substitute a fictitiously named defendant’s true name may be made, California courts have recognized that the amendment may be made of course within the time prescribed in section 472 or, otherwise, by leave of court under section 473.  (Gutierrez v. Superior Court, 243 Cal. App. 2d 710, 723 (superseded on other grounds as recognized in Rosas v. Superior Court, 25 Cal. App. 4th 671, 674 (1994)).)

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).)¿ 

“ ‘[I]t is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.’ (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 759-761.) 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

Plaintiff seeks a court order allowing him to amend the complaint by substituting Aesthetic maintenance Corporation as Doe 1 after learning in discovery that Defendant was at work on the morning of the incident.

The Court notes that Plaintiff has not complied with CRC Rule 3.1324(a) because it has not included a copy of the proposed amended complaint, and thereby has not indicated what allegations are proposed to be added to the previous pleading.  Further, Plaintiff has not complied with CRC 3.1324(b), because he has not filed a declaration.

Despite the procedural defect, the court addresses the merits of the motion.   

The Court finds that although there is no declaration, Plaintiff explains that he seeks to amend the complaint to name Defendant’s employer as a defendant, as he has learned in discovery that Defendant was working on the day of the incident. Although Plaintiff has not explained when he learned this information and why the request for amendment was not made earlier, the Court notes Defendant has not been prejudiced by the delay.

In opposition, Defendant argues that the case is set for trial on December 6, 2022 and thus, bringing on a new defendant this close to trial will almost certainly require a trial continuance. That an opposing party might need to seek a trial continuance is not grounds for the Court to overrule a motion for leave to amend.  (Thompson Pacific Construction, Inc. v. City of Sunnyvale (2007) 155 Cal.App.4th 525, 544.)

Conclusion

Based on the foregoing, the court exercises its discretion to grant Plaintiff’s motion for leave to amend.

Moving party is ordered to give notice.