Judge: Steven A. Ellis, Case: 19STCV42816, Date: 2024-04-11 Tentative Ruling

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ALSO NOTE:  If the moving party does not contact the court to submit on the tentative and does not appear (either remotely or in person), the motion will be taken off calendar.  THE TENTATIVE RULING WILL NOT BE THE ORDER OF THE COURT.

Case Number: 19STCV42816    Hearing Date: April 11, 2024    Dept: 29

Motion for Leave to Amend Answer filed by Defendant Eduardo De Vicente.

Tentative

The motion is granted.

Background

On November 27, 2019, Marc Romero (“Plaintiff”) filed a complaint against Eduardo De Vicente (“Defendant”) and Does 1 through 50 for a negligence cause of action arising from  an automobile accident occurring on June 10, 2019. Defendant filed an answer on June 29, 2021, asserting four affirmative defenses for (1) failure to state a cause of action, (2) comparative negligence,(3) failure to mitigate damages) and (4) third party negligence.

On May 11, 2023, Defendant filed this motion for leave to file first amended answer. No opposition has been filed.

Legal Standard

CCP § 473(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.)

Under CRC 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 CRC 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. 

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.  If the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the judge has discretion to deny leave to amend.  (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.)  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.)

Discussion

Defendant requests leave to amend their complaint to add a fifth affirmative defense of accord. (Motion, 5:25-27.) Defendant contends that Plaintiff’s counsel sent a demand letter to settle the claim for policy limits on July 15, 2021. (Bakshandeh Decl., ¶ 2.) Defendant alleges that he accepted this demand on August 2, 2021. (Id., ¶ 3; see also Tan Decl., ¶ 3 and Exhibits B & C.) Defendant requests leave to amend answer to add accord as an affirmative defense in relation the the acceptance of Plaintiff’s settlement demand. (Id., ¶ 7.) Plaintiff has not filed an opposition to this motion.

Defense counsel includes in the declaration addressing the need for the amendment to address this agreement as well as that it was discovered after the case was transferred to him in February 2023. Further, the declaration of Laura Cohen details back and forth conversation between defense and Plaintiff’s counsel regarding the settlement between March 9, 2023 and April 20, 2023, which explains why this motion was not filed until May 11, 2023. Lastly, Defendant has met the requirement of attaching the amended pleading to this motion. (Exhibit H.)

The Court finds good cause has been established to grant leave to Defendant to file an amended answer including a new affirmative defense of accord.

As such, the Court GRANTS the motion for leave to amend.

Conclusion

The Court GRANTS Defendant’s motion for leave to amend his answer.

The Court GRANTS Defendant leave to file the amended answer attached to his moving papers within 14 days of the hearing.

Moving Party is to give notice.