Judge: Yolanda Orozco, Case: 22STCV15476, Date: 2023-03-02 Tentative Ruling
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Case Number: 22STCV15476 Hearing Date: March 2, 2023 Dept: 31
MOTION FOR LEAVE TO AMEND AND FILE SECOND AMENDED CROSS-COMPLAINT
TENTATIVE RULING
Defendant’s/Cross-Complainant’s Motion for Leave to File a Second Amended Cross-Complaint is GRANTED.
Background
On May 10, 2022, Plaintiff pro per Jesus Islas Sanchez filed an unverified Complaint against Fidel Romano and DOES 1 to 5.
The operative First Amended Complaint asserts the following causes of action:
1) Declaratory relief;
2) Accounting;
3) Trespass; and
4) Quiet Title.
On December 8, 2022 the Court sustained in part the Demurrer and granted in part the Motion to Strike.
On June 10, 2022, Defendant Fidel Romano filed a Cross-Complaint against Plaintiff for:
1) Quiet Title by Adverse Possession;
2) Accounting; and
3) Declaratory Relief.
Defendant/Cross-Complainant filed a first Amended Cross-Complaint on August 02, 2022.
Cross-Complainant now seeks leave to file a Second Amended Cross-Complaint.
Legal Standard
Leave to amend is permitted under Code of Civil Procedure section 473, subdivision (a) and section 576. The policy favoring amendment and resolving all matters in the same dispute is “so strong that it is a rare case in which denial of leave to amend can be justified. . ..” “Although courts 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 [citations], this policy should be applied only ‘where no prejudice is shown to the adverse party . . .. [citation]. A different result is indicated ‘where inexcusable delay and probable prejudice to the opposing party’ is shown. [Citation].” (Magpali v. Farmers Group (1996) 48 Cal.App.4th 471, 487.)¿¿¿
Under California Rules of Court, rule 3.1324, 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. (Cal. Rules of Court, rule 3.1324(a).) A separate supporting declaration specifying (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 reason why the request for amendment was not made earlier must accompany the motion. (Id., rule 3.1324(b).)¿¿
Discussion
On October 28, 2022 Defendant/Cross-Complainant filed this instant motion seeking leave to file a Second Amended Cross-Complaint.
Cross-Complainant asserts that the First Amended Cross-Complaint contains errors regarding zip code of the attorney for Cross-Complainant and the name of the Cross-Defendant.
Cross-Complainant filed a Notice of Errata on September 13, 2022 correcting the above mistakes but the court clerk in rejecting the Cross-Defendant’s request for entry of default stated that the Notice of Errata did not correct the errors. (See Notice of Rejection submitted on 10/26/23.)
Until the errors were noted by the court clerk, Cross-Complainant was unaware of the errors in the Amended Cross-Complaint.
The proposed Second Amended Cross-Complaint, as attached to the Motion, seeks to correct the above two errors. (Vega Decl. ¶¶ 6-9, Ex. 1.) Cross-Complainant asserts that the motion was promptly made, poses no prejudice to Plaintiff, and was not brought in bad faith.
For the reasons stated, leave to amend the Cross-Complaint is GRANTED.
Conclusion
Defendant’s/Cross-Complainant’s Motion for Leave to File a Second Amended Cross-Complaint is GRANTED. Defendant/Cross-Complainant must file the Second Amended Cross-Complaint within 5 days.
Moving party to give notice.