“The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading....” Code Civ. Proc., § 473(a)(1); see also Code Civ. Proc., § 576.
"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.” Code Civ. Proc., § 473(a)(1).
“A trial court's exercise of discretion with respect to amendment of pleadings should be upheld unless clearly abused.” Nelson v. Specialty Records, Inc. (1970) 11 Cal.App.3d 126, 139, 89 Cal.Rptr. 540. “[G]ranting of leave to amend must be construed as permission to the pleader to amend the cause of action which he pleaded in the pleading to which the demurrer has been sustained.” People By and Through Dept. of Public Works v. Clausen (1967) 248 Cal.App.2d 770, 785.
The burden is on the complainant to show the court that a pleading can be amended successfully, in order to obtain an order allowing leave to amend. McKenney v. Purepac Pharm. Co. (2008) 167 Cal.App.4th 72, 78. If the opposing party's evidence would show some factual assertion, legal theory, defense or claim not yet pleaded, that party should seek leave to amend the pleadings before the hearing on the summary judgment motion. 580 Folsom Assoc. v. Prometheus Develop. Co. (1990) 223 Cal.App.3d 1, 18; City of Hope Nat. Med. Center v. Super. Ct. (1992); Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1264-1265.
The court’s discretion will usually be exercised liberally so as not to deprive a party of the right to assert a meritorious cause of action or defense. Klopstock v. Super. Ct. (1941) 17 Cal.2d 13, 19; Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 760.
The policy favoring amendment is so strong that denial of leave to amend can rarely be justified:
If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.
Morgan v. Super. Ct. (1959) 172 Cal.App.2d 527, 530. Where there is no prejudice to the adverse party, it may be an abuse of discretion to deny leave to amend. Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761; Thompson Pac. Construction, Inc. v. City of Sunnyvale (2007) 155 Cal.App.4th 525, 544–545.
The liberal policy of permitting amendments is not without limitation or qualification.
The policy of liberality in permitting amendments applies only where no prejudice is shown to the adverse party. An opposing party which can show inexcusable delay and probable prejudice leads to a denial of the motion to amend. Magpali v. Farmers Grp., Inc. (1996) 48 Cal.App.4th 471, 486-487; see also Hulsey v. Koehler (1990) 218 Cal.App.3d 1150, 1159; M&F Fishing, Inc. v. Sea-Pac Ins. Managers, Inc. (2012) 202 Cal.App.4th 1509, 1534; Hayutin v. Weintraub (1962) 207 Cal.App.2d 497, 508.
When a proposed amendment opens up an entirely new field of inquiry without any satisfactory explanation as to why the major change in point of attack had not been made long before trial, denial of leave to amend is appropriate. Estate of Murphy v. Gulf Ins. Co. (1978) 82 Cal.App.3d 304, 311. See also Record v. Reason (1999) 73 Cal.App.4th 472, 486 (leave to amend properly denied where appellant had knowledge of the circumstances on which he based the amended complaint on the day he was injured, almost three years before he sought leave to amend, and appellant's amendment arose from the same conduct as that in the original complaint).
When the discovery cut-off has already passed, additional discovery would delay the trial, and also add increased burden of discovery and added costs of preparation. Magpali v. Farmers Grp., Inc. (1996) 48 Cal.App.4th 471, 486-488; Green v. Rancho Santa Margarita Mort. Co. (1993) 28 Cal.App.4th 686, 692-694.
Generally, however, where “the legal sufficiency” of the proposed amendment is unclear, “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.” Cal. Casualty Gen. Ins. Co. v. Super. Ct., 173 Cal.App.3d 274, 281.)
A motion to amend a pleading must:
Civil Rules of Court, rule 3.1324(a).
The moving party is required to submit a separate declaration explaining when the new alleged facts were discovered and why the request for amendment was not made earlier. The declaration must specify:
Civil Rules of Court, rule 3.1324(b).
Note, the Code of Civil Procedure, section 581(f)(2) provides that the court may dismiss when “after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal.” “The failure to amend and state a cause of action against defendant is an admission that plaintiff has stated the case as strongly as he can and there are no facts that could be alleged to cure the defect.” Cano v. Glover (2006) 143 Cal.App.4th 326, 329-330.
...Defendants’ demurrer and motion to strike portions of the FAC. The Court sustained the demurrer to the 2nd, 4th, and 8th causes of action for unfair business practice, IIED, and PAGA with 20 days leave to amend and overruled the 1st cause of action for negligence. On October 28, 2019, Plaintiff filed the SAC. On November 20, 2019, SCEE, Bochkarev, and Dyachkov (“Defendants”) filed a demurrer to the SAC, as...
... amend. B. Motion to Strike First, Defendants move to strike the entire 10th cause of action, paragraphs 85-93. For the reasons stated above, the Court denies the motion to strike. In any event, leave to amend has been granted. Second, Defendants move to strike paragraphs 42(a)-(b) and 93 from the SAC, which states that Defendants’ conduct was a scheme intended to defraud Plaintiff based on her race as a M...
Feb 21, 2020
...to Strike Punitive Damages from Plaintiff’s Complaint TENTATIVE RULING: The motion is GRANTED WITH LEAVE TO AMEND. Plaintiff may file an amended complaint within 10 days. If plaintiff does not file an amended complaint within 10 days, the prayer for punitive damages is stricken without leave to amend and defendant shall file an answer within 30 days of the hearing on this motion. Today’s Case Management ...
...of disagreement, by arbitration.” (Cal. Ins. Code § 11580.2.) Defendant’s argument is correct in that it may have a statutory right to conduct discovery, but the argument is irrelevant to the instant motion. Insurance Code § 11580.2 lists certain requirements for insurance companies to follow in creating policy contracts. It does not dictate that in the present situation, plaintiff’s complaint could be s...
Feb 21, 2020
[TENTATIVE] ORDER RE: MOTION TO DISMISS On December 10, 2018, plaintiff Ronald Auld (“Plaintiff”) filed this action against defendant Valley Presbyterian Hospital (“Defendant”). Defendant was served via substitute service on Jan...
...and motion to strike were heard on May 8, 2019. The Court ordered the FAC stricken, sustained Defendant’s demurrer in part, and granted Plaintiff 20 days’ leave to amend. Plaintiff did not file a Second Amended Complaint (“SAC”) until July 29, 2019. On December 18, 2019, Defendant filed a motion to dismiss stating Plaintiff never served Defendant with the SAC and that Defendant only learned of the SAC by ...
Feb 21, 2020
roberto rodriguez, Plaintiff, v. network autobody, inc., Defendant. Case No.: 19BBCV01005 Hearing Date: February 21, 2020 [TENTATIVE] order RE: motion to strike BACKGROUND A. Allegations Plaintiff Roberto Rodriguez (“Plaintiff”) alleges that he was hired to work as a “painter assistant” with Defendant Network Autobody, Inc. (“Defendant”) in March...
...retaliation. B. Motion to Strike On December 30, 2019, Defendant filed a motion to strike allegations for punitive damages alleged in the complaint. On February 5, 2020, Plaintiff filed an opposition to the motion. DISCUSSION A complaint including a request for punitive damages must include allegations showing that the plaintiff is entitled to an award of punitive damages. (Clauson v. Superior Court (1998) 67...
Feb 21, 2020
...Company and Timothy McAdam, co-trustees of the Charles L. Weber Family Trust Resp. Party: Cross-Complainant Robert Hanisee Cross-Defendants’ demurrer is SUSTAINED with leave to amend. Cross-Defendants’ motion to strike is denied as MOOT. BACKGROUND: This case concerns money in a trust that was allegedly distributed to the settlor/trustee’s business partners without the settlor/trustee’s consent. On Dece...
...¶ 15.) On January 21, 2020, Cross-Defendants San Pasqual Fiduciary Trust Company and Timothy McAdam, co-trustees of the Charles L. Weber Family Trust (“the Trust”) filed the instant demurrer to, and motion to strike provisions of, Hanisee’s cross-complaint. ANALYSIS: I. Demurrer A. Legal Standard A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law,...
Feb 21, 2020
SUBJECT: Motion to Compel Discovery Moving Party: Plaintiff Claire Levine Resp. Party: Defendant Allan Law Group, P.C. Plaintiff’s motion to compel discovery responses is DENIED. Defendant’s request for sanctions is DENIED. PRELIMINARY COMMENTS: Although the Court is denying Plaintiff’s motion for the reasons stated below, the Court ...
...Court believes that Defense counsel is playing games by its blanket objections to relevant discovery and by not providing answers to legitimate interrogatories. The Court will allow Plaintiff to file a motion to compel further responses; if the Court finds in favor of Plaintiff on such a further motion, the Court will consider awarding plaintiff sanctions. Hopefully, the parties will be able to meet-and-co...
Feb 21, 2020
...Thornton and Sunfire Nutrition, LLC Resp. Party: Plaintiff Ilan Bitton Defendants’ demurrer is OVERRULED as to the first and third causes of action. Defendants’ demurrer is SUSTAINED without leave to amend as to the second cause of action. Plaintiff’s request for sanctions is DENIED. BACKGROUND: This case concerns the breach of an agreement to form a new business entity for the marketing and sale of ...
...serve a declaration detailing the meet and confer efforts. (Code Civ. Proc., § 430.41(a)(3).) If an amended pleading is filed, the parties must meet and confer again before a demurrer may be filed to the amended pleading. (Code Civ. Proc., § 430.41(a).) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judici...
Feb 21, 2020
The Mandatory Appearance CMC/OSC re sanctions/dismissal failure to file proof of service/default is continued from 2/21/20, to 4/21/20, at 8:15 am in Dept. 22B. A Motion for Leave to Amend is scheduled for hearing on 3/27/20. Notice to be provided by plaintiffs.
Feb 21, 2020
Genalin Riley
Motion for Leave to Amend Answer Having considered the moving, opposing, and reply papers the Court rules as follows. BACKGROUND On December 13, 2018, Plaintiff Shahnaz Ali (“Plaintiff”) filed a complaint against Defendants...
...cross-complaint against Defendant/Cross-Defendant Armen Arshakyan seeking apportionment and declaratory relief. On January 13, 2020, Defendant/Cross-Complainant David Resendiz filed a motion for leave to amend its answer pursuant to California Code of Civil procedure section 473, subdivision (a). Trial is set for June 11, 2019. PARTY’S REQUEST Defendant/Cross-Complainant David Resendiz (“Moving Pary”) as...
Feb 20, 2020
...E. Bell Corp. v. Bell View Oil Syndicate (1941) 46 Cal.App.2d 684, 691.) A demurrer will be sustained without leave to amend if there exists no “reasonable possibility that the defect and be cured by amendment.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “The burden of proving such reasonable possibility is squarely on the plaintiff.” (Id.) Issue No. 1: The Sham Pleading Doctrine “[A]dmissions in an...
...signed by the parties on October 25, 2016—which is attached as Exhibit 1 to each version of Plaintiff’s complaint—was the sole and operative agreement in connection with this litigation. Although leave to amend is designed to allow a party to assert facts not previously pled, Plaintiff fails to offer any reasonable or plausible explanation in its opposition on why such facts were not alleged in the first ame...
Feb 20, 2020
# 9. Tommy Gay v. Diamond Mattress Company, Inc., et al. Case No.: 19CMCV00049 Matter on calendar for: Motion for Leave to File FAC Tentative ruling: Background This is a wrongful termination and discrimination action. Plaintiff Tommy Gay alleges violations of the Fair Employment and Housing Act (“FEHA”) and the lab...
...JobSource opposes the motion. For the reasons set forth below, the Court continues the hearing. Standard Code of Civil Procedure §§ 473(a)(1) and 576 provide courts with the authority to allow the amendment of pleadings upon a showing of good cause and the absence of prejudice. California Rules of Court, Rule 3.1324(b) requires that Plaintiff prepare a declaration specifying (i) the effect of the ame...
Feb 20, 2020
Salvatore Sirna or Gary Y. Tanaka
...COUNTY OF LOS ANGELES - CENTRAL DISTRICT ZANE WELLS, etc., Plaintiff, vs. ISRAEL SHAI CHENZION, etc., et al., Defendants. CASE NO.: 19STCV26231 [TENTATIVE] ORDER RE: MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT Date: February 20, 2020 Time: 8:30 a.m. Dept. 56 MOVING PARTIES: Defendants Israel Shai Chenzion (“Chenzion”) and Cucine Italia, Inc. dba Pedini L.A. (“Pedini”) RESPONDING PARTY: Plai...
...decisions of Pedini. Defendants filed a demurrer to every cause of action asserted in Plaintiff’s complaint and the demurrer was sustained with leave to amend. Plaintiff then filed the operative First Amended Complaint (“FAC”) which arises from the alleged breach of an agreement in which Plaintiff was promised things such as profit-sharing and would partake in all significant decisions of Pedini. The FAC...
Feb 20, 2020
...case (YD058401) to harm Plaintiff. The First Amended Complaint (“FAC”) alleges the following causes of action: Malicious Prosecution; Abuse of Process; Defamation, per se; Intentional Infliction of Emotional Distress; Negligent Infliction of Emotional Distress; and Intentional Alienation of Parental Affection. Defendants now demur to the FAC. An opposition and reply have been received and considered....
...underlying court’s “broad powers to control judicial proceedings. [Citation.]” (Adams, supra, 2 Cal.App.4th at 528.) Accordingly, the demurrer to the first cause of action is sustained without leave to amend. Abuse of Process Abuse of process involves the “ ‘ “misuse of the power of the court; it is an act done in the name of the court and under its authority for the purpose of perpetrating an injustice...
Feb 20, 2020
Salvatore Sirna or Gary Y. Tanaka
19STCV16750 IKE vs TRICOLOR AUTO GROUP, LLC Plaintiff’s Motion for Leave to Amend Complaint TENTATIVE RULING: The motion is GRANTED. Plaintiff may file an amended complaint within 10 days. Defendants’ request for judicial notice is GRANTED. (Evid. Code § 452(c), (d).) However, the Court will not take judicial notice of the truth of the contents of the court ...
...Bragg Management Co. (1985) 39 Cal.3d 290, 296-97; see also Ventura v. ABM Industries, Inc. (2013) 212 Cal.App.4th 258, 268) [“Trial 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 where the adverse party will not be prejudiced.”].) Pursuant to CRC 3.1324(a), a motion to amend must: (1) include a c...
Feb 20, 2020
...ANGELES - CENTRAL DISTRICT MARTIN RAMIREZ, et al., Plaintiffs, vs. GENERAL MOTORS, LLC, et al., Defendants. CASE NO.: 19STCV24183 [TENTATIVE] ORDER RE: DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT; MOTION TO STRIKE Date: February 20, 2020 Time: 8:30 a.m. Dept. 56 MOVING PARTY: Defendant General Motors, LLC (“Moving Defendant”) RESPONDING PARTY: Plaintiffs Martin Ramirez and Lizeth Ramirez The Cou...
...merchantability; (6) violation of the Magnuson-Moss Warranty Act; and (7) fraud by omission. Moving Defendant filed a demurrer to the seventh cause of action in the FAC. Moving Defendant also filed a motion to strike portions of the FAC. MEET AND CONFER The meet and confer requirement has been met. DEMURRER “A demurrer tests the sufficiency of a complaint as a matter of law.” (Durell v. Sharp Healthc...
Feb 20, 2020
The Motion to Strike the punitive damages claim, is granted with 10 days’ leave to amend. To support punitive damages, the complaint must allege the ultimate facts that show the Defendant’s commission of the tort with oppression, fraud, or malice. (Civ. Code § 3294; Spinks v. Equity Resid...
...the Defendant engaged in the requisite conduct to support the request for punitive damages against the corporate entity. (See § 3294(b).) Because this is Plaintiff’s first attempt at pleading, leave to amend is provided. However, it is worth observing that the facts presently alleged appear to be closer to a contract dispute. If the pleader does not presently have the facts to show malice, oppression or f...
Feb 20, 2020
...Demurrer to Complaint Defendant County of Orange demurs to the fifth cause of action in Plaintiff Brandon Vineyard’s Complaint. For the following reasons, Defendant’s demurrer is sustained with leave to amend. In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. A demurrer challenges only the legal sufficiency of...
...allege sufficient facts demonstrating that Defendant owed Plaintiff a duty of care. Defendant’s demurrer to the fifth cause of action is sustained with leave to amend. Should Plaintiff desire to file an amended complaint addressing the issues in this ruling, Plaintiff must file and serve it by March 2, 2020. Defendant to give notice. Defendant County of Orange’s Motion to Strike Complaint Defendant County ...
Feb 20, 2020
...conversion, conspiracy to commit conversion, civil claim for receipt of stolen property – Penal Code §496(c), unjust enrichment, common count: money had and received – quantum meruit, intentional infliction of emotional distress, violation of Usury Laws – loansharking, cancellation of written instruments – Civil Code §3412, rescission of written instruments, injunctive relief, and declaratory relief. (1) DEMURRER ...
...demurrer to the 1st COA in the complaint is sustained with 30 days leave to amend. CONCLUSION Till’s demurrer to the 1st COA in the complaint is sustained with 30 days leave to amend. (2) DEMURRER TO AND MOTION TO STRIKE PORTIONS OF CROSS-COMPLAINT INTRODUCTION Perry demurs to the aiding and abetting civil extortion, conspiracy to commit extortion, aiding and abetting conversion, conspiracy to commit conve...
Feb 20, 2020
...Chiron’s MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT Responding Party: Defendants Hyundai Motor America and Glendora Hyundai Tentative Ruling Plaintiff Ruth Chiron’s Motion for Leave to File Second Amended Complaint is GRANTED. Background Plaintiff Ruth Chiron (“Plaintiff”) alleges that the 2013 Hyundai Elantra, VIN 5NPDH4AE2D199444 (“subject vehicle”) she purchased from Glendora Hyundai is defectiv...
...Magnuson-Moss Warranty Act Breach of Implied Warranty under Magnuson-Moss Warranty Act On July 29, 2019, the court sustained HMA’s demurrer to the first and fourth causes of action in the FAC, without leave to amend. The Final Status Conference is set for June 15, 2020. Trial is set for June 23, 2020. Legal Standard “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to ...
Feb 20, 2020
Gloria White-Brown
A) Demurrer Defendant Kia Motors America’s (“Defendant”) Demurrer to the 6th Cause of Action for Fraud by Omission is SUSTAINED with leave to file a First Amended Complaint within 15-days of the hearing. Plaintiff Barbara R. Hurd (“Plaintiff”) has failed to state facts sufficient to support a cause of action for fraud by omission against Defendant. CCP § 430....
...in the notice of demurrer may be disregarded by the court. CCP § 430.60. Finally, if a demurrer is sustained as to any cause of action or causes of action, it is an abuse of discretion to deny leave to amend if there is any reasonable possibility that plaintiff can state a good cause of action. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349. But if a party cannot amend to state a valid cause of action, or t...
Feb 20, 2020
...cause, the motion of the cross-complainants for leave to file a Second Amended Cross-Complaint is CONTINUED to March 5, 2020, at 1:30 pm. It will be heard concurrently with the same motion for leave to amend set for that day and the additional ex parte motion for leave to re-open discovery. The defendants shall give notice.
Feb 20, 2020
...BC701560 CASE NAME: Jose Arreola, et al. v. SNS Investment LLC MOVING PARTY: Defendant, Real Estate Specialists (Doe 2) OPPOSING PARTY: All Plaintiffs TRIAL DATE: June 9, 2020 PROOF OF SERVICE: OK MOTION: Defendant’s Demurrer to the Complaint OPPOSITION: February 4, 2020 REPLY: February 13, 2020 TENTATIVE: RES’s demurrer to the fourth and sixth causes of action are OVERRULED. In opposition, Plainti...
...prejudice, Plaintiffs need to file a request for dismissal. Unless such a request is filed prior to the ruling on this demurrer, the demurrer to those causes of action will be SUSTAINED with leave to amend. Plaintiffs are to provide notice. BACKGROUND This action arises out of Plaintiffs, Jose Arreola, Maria Roman, Damian Roman, Gizell Motes, by and through her guardian ad litem Maria Roman, Ethan Per...
Feb 20, 2020
...MANAGEMENT, INC., et al. * TENTATIVE RULING: * Defendants BH Properties Management, Inc., et al.’s demurrer to the First Amended Complaint is sustained with leave to amend. Plaintiff shall file and serve any amended complaint on or before March 12, 2020. Background This case involves a family business originally established in 1948 to operate the historic Stamm Theatre in Antioch. Over time, the business grew...
...Western Union (1977) 71 Cal.App.3d 873, 879.) 7th C/A (Equitable Relief from Dismissal) Defendants’ demurrer to the Seventh Cause of Action for Equitable Relief from Dismissal is sustained with leave to amend. Plaintiffs allege that as result of the deceptions and false promises of compromise, Plaintiffs were induced to release their lawsuit against Defendants in Contra Costa County Case No. MSC17-00298. ...
Feb 20, 2020
...* Defendant’s motion for summary judgment is granted. The issue conference and trial dates are vacated. Defendant shall prepare a proposed judgment of dismissal, separate from any formal order on the motion, and shall submit that proposed judgment to plaintiffs’ counsel for approval as to form. The basis for this ruling is as follows. A. The Pleading Of Plaintiffs’ Complaint. A motion for summary adju...
...sufficiency of the complaint.” (American Airlines, Inc. v. County of San Mateo (1996) 12 Cal.4th 1110, 1117-18.) In this context, the courts consider the motion under the same standards applicable to a motion for judgment on the pleadings. (Id.) B. The First And Second Causes of Action. The First and Second Causes of Action are for violation of the Homeowner Bill of Rights (“HBOR”). Specifically, plainti...
Feb 20, 2020
DARREN DORSEY’s Motion for Leave to File Amended Answer TENTATIVE RULING Defendant DARREN CRAIG DORSEY, SR. (“DARREN,” so as to distinguish him from Defendant RHONDA COLE DORSEY) moves to amend his answer filed in this action on April 24, 2019. The trial court may, in its discretion, allow amendments to pleadings “in furtherance of justice.” (Code Civ. Proc. § 473, subd. (a)(1).) The court h...
... amendment. (See Frost v. Witter (1901) 132 Cal. 421, 424; Cardenas v. Ellston (1968) 259 Cal.App.2d 232; Kolani v. Gluska (1998) 64 Cal.App.4th 402, 412.) It is an abuse of discretion to deny amendment where amendment does not prejudice the opposing party. (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.) DARREN asks to replace his form answer denying each of Plaintiff’s causes of actio...
Feb 20, 2020
CHRISTINE CARRINGER
