“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.)

How to Structure the Motion

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:

1. include a copy of the proposed amended pleading;
2. state what allegations 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.

(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:

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.

Civil Rules of Court, rule 3.1324(b).

Response

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’s Decision

"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.)

Statute of Limitations

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.)