“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 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.)
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).
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.)
"The court may... 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).) “[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 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.)
“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.) 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.)
But note, the liberal policy of permitting amendments is not without limitation or qualification.
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.)
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.)
Plaintiffs Julie Nassif’s and Toby Nassif’s motion for leave to file a second amended complaint is denied.Plaintiffs’ request for judicial notice of the First Amended Complaint filed in the instant action is denied as unnecessary. “[A]ll that is necessary is to call the court’s attention to such papers.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2017) ¶ 9.5...
..torious cause of action or defense. 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 wh...
Jul 26, 2019
Orange County, CA
Motion for Leave to File 1st Amended Complaint.The initial complaint in this action was filed on February 9, 2017. On January 18, 2018 the court granted defendant’s motion for leave to file a 1st amended answer. On January 22, 2018 plaintiff field a motion for leave to file a 1st amended complaint. A motion for summary judgment is set for hearing on June 1, 2018. A trial date has never been set in...
..plaint was filed; and there is no prejudice to defendant by allowing leave to amend as requested.Defendant opposes the motion on the following grounds: no matter what plaintiff calls the cause of action, plaintiff will not prevail in this action and the pending summary judgment motion will esta...
Apr 12, 2018
El Dorado County, CA
(1) Plaintiff’s Motion for Leave to File 3rd Amended Complaint.(2) Case Management Conference Re: Necessity of Hearing Motion for Summary Judgment.Plaintiff’s Motion for Leave to File 3rd Amended Complaint.On January 22, 2016 the court sustained demurrers to the 2nd through 7th causes of action of the 1st amended complaint without leave to amend and sustained the demurrer to the 1st cause of actio...
..ion and Dr. Palma’s addition as a defendant in the 2nd amended complaint without prejudice to plaintiff seeking leave to amend to add a new cause of action and a new defendant. Plaintiff was present at that hearing. The formal order granting the motion to str...
Jan 25, 2018
El Dorado County, CA
Defendant Joshua Mosshart’s Demurrer to LPL Financial, LLC’s Second Amended Complaint is SUSTAINED without leave to amend as to the third cause of action for equitable indemnity and SUSTAINED without leave to amend as to the second cause of action for negligence without prejudice as to LPL filing a motion for leave to amend the SAC to add the negligence cause of action.Defendant Joshua Mosshart’s...
..law. We also consider matters which may be judicially noticed. Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“A demurrer tests the plea...
Dec 07, 2016
Los Angeles County, CA
Jiang v. Xu, et al. Defendant David Gao’s Motion to Strike Plaintiff’s Improperly Filed Second Amended Complaint and Dismiss Action is denied. The court deems the Second Amended Complaint filed as of October 23, 2018, and on its own motion, strikes the allegations against Defendant Helen Xu therein. Plaintiff Yvonne Jiang’s Motion for Leave to File Amended Complaint is deemed moot. Procedural H...
..t Defendant Gao. On June 14, 2017, Plaintiff filed a “First Amendment to the Third Cause of Action to the Complaint.” Instead of being a complete Amended Complaint, it was simply an amended version of the third cause of action. On June 23, 2017, Plaintiff filed a “Second Amendment to Complaint and Attachment of First Cause of Action” that purported to amend the first cause of action. Instead of...
Feb 07, 2019
James E. Blancarte or Wendy Chang
Los Angeles County, CA
Clarke v. Wilkins et al. (1) MOTION FOR LEAVE TO AMEND COMPLAINT (CCP § 426.50) (2) MOTION FOR SUMMARY JUDGMENT ON THE COMPLAINT (CCP § 437c) TENTATIVE RULING: Plaintiff Priscilla Clarke’s Motion for Leave to Amend Complaint is GRANTED. Her Motion for Summary Judgement is CONTINUED to February 3, 2019 at 10:30 a.m. in Department 94. ANALYSIS: I. Background On July 24, 2018, Plaintiff Pris...
..be heard on the same day, but Defendant has only opposed the MSJ. II. Discussion A. Motion for Leave to Amend the Complaint “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, u...
Oct 02, 2019
James E. Blancarte or Serena R. Murillo
Los Angeles County, CA
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