Judge: William D. Claster, Case: 21-01187589, Date: 2022-08-24 Tentative Ruling

Petitioners and Plaintiffs Mojave Pistachios, LLC and Paul G. Nugent and Mary E. Nugent, Trustees of the Nugent Family Trust dated June 20, 2011's Motion for Leave to Amend Petition for Writ of Mandamus and Complaint ROA 451

Plaintiffs Mojave Pistachios, LLC, et al.’s motion for leave to file a proposed third amended petition is GRANTED IN PART and DENIED IN PART.  Specifically, the Court denies leave to amend insofar as Mojave Pistachios seeks to delete allegations relating to a refund of the “Extraction Fee.”  The motion is otherwise granted in its entirety.

The parties’ unopposed requests for judicial notice are GRANTED.

GROUNDS FOR RULING

A court “may, in the furtherance of justice . . . allow a party to amend any pleading.”  (CCP § 473(a)(1).)  “[C]ourts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial.”  (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487.)  But the policy of liberality does not apply “[w]here inexcusable delay and probable prejudice to the opposing party is shown.”  (Estate of Murphy (1978) 82 Cal.App.3d 304, 311.)  Leave to amend may be denied where amendment would be futile (see Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 230), but “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.)

As an initial matter, the Steinfeld Declaration (ROA 447) adequately addresses the CRC 3.1324(b) factors.  Defendant Indian Wells Valley Groundwater Authority doesn’t appear to contest the sufficiency of the Steinfeld Declaration on this point.

The Authority argues Mojave Pistachios has unreasonably delayed in bringing this motion.  Assuming for the sake of argument that Mojave Pistachios has delayed, the Authority shows no prejudice caused by that delay.  No trial date has been set, and there are no pressing deadlines.  The Authority complains that it will have to incur the time and expense of demurring to the amended petition, but the Authority presumably could avoid the extra time and expense by answering the amended petition and settling the pleadings.  Any time and expense associated with a demurrer would be incurred voluntarily by the Authority.

The Authority also argues that some of the proposed amendments are futile.  This may be, but per Kittredge Sports Co., the preferable practice is to permit amendment and allow the allegations to be tested by dispositive motion rather than deciding merits issues on a motion for leave to amend.

However, there is one category of amendment that is improper.  Mojave Pistachios seeks to delete allegations relating to the refund of the “Extraction Fee.”  It says those allegations are moot now that it has filed a separate action (No. 2022-01249146, the “Second Action”) seeking a refund of the Extraction Fee it paid.  As the Authority correctly notes in opposition, Mojave Pistachios has it backwards.  The existence of refund allegations in this case is reason to abate the Second Action, not reason to delete “moot” allegations here.  “The underlying theory of the plea of another action pending is that the first action will normally be an ample remedy, and the second action . . . is therefore unnecessary and vexatious.”  (California Union Ins. Co. v. Trinity River Land Co. (1980) 105 Cal.App.3d 104, 109.)  Mojave Pistachios cites no authority for the proposition that, having improperly split its claims, the proper course of action is to amend the petition in this action so the Second Action may go forward. 

Accordingly, the motion is denied insofar as Mojave Pistachios seeks to delete allegations relating to the refund of the Extraction Fee.  The motion is granted in all other respects.