Judge: Theodore R. Howard, Case: 21-1225059, Date: 2023-01-05 Tentative Ruling

The motion by Pre-Banc Business Credit, Inc. for leave to file a First Amended Complaint is GRANTED.

Moving party’s request for judicial notice is GRANTED.

California Rules of Court, Rule 3.1324 states in part:

“(a) Contents of motion

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.

(b) Supporting declaration

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.”

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.  (Code Civ. Proc., § 473(a)(1).)  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.  (Code Civ. Proc., § 473(a)(1).)  Additionally, 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.  (Code Civ. Proc., § 576.)   “There is a policy of great liberality in permitting amendments to the pleadings at any stage of the proceeding.” (Sullivan v. City of Sacramento (1987) 190 Cal.App.3d 1070, 1081.) 

Defendant Pinnacle Audio, Video & Lighting, Inc. (“PAV”) opposes the motion on the grounds that the declaration of counsel submitted along with the motion does not state when the facts giving rise to the amendment were discovered nor the reason why the amendment was not made earlier.  The moving papers comply with the remaining portions of Rule 3.1324 and PAV does not dispute this.   Plaintiff submits a supplemental declaration of Richard Arshonsky along with the Reply which sets forth the facts to satisfy Rule 3.1324(b)(3) & (4).  In light of the facts of this matter, and the great liberality expressed in numerous cases regarding amendment of complaints, the Court exercises its discretion and considers the supplemental declaration.

PAV’s claim that the FAC contains allegations that contradict the original complaint or that “alter ego” allegations are not proper under California law can be addressed through other pleading challenges.  Ordinarily, the court does not consider the validity of the proposed amended pleading in deciding whether to grant leave to amend.  (Kittredge Sports Co. v. Superior Court (Marker, U.S.A.) (1989) 213 Cal. App. 3d 1045, 1048.)  Further, “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.)

Accordingly, the motion is GRANTED and plaintiff is granted leave to file the First Amended Complaint, as attached to the moving papers, within 10 days.

The Court orders plaintiff to give notice of this ruling.