Case Number: BC569359??? Hearing Date: August 02, 2016??? Dept: 51
BC569359 (r/t BC533212)
MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT
On January 14, 2015, plaintiff filed a complaint against Bank of America, N.A. (BOA) and William Schnieders for breach of contract, negligence, intentional interference with contract, intentional interference with economic advantage, negligent interference with economic advantage, defamation, and false light. The factual allegations are virtually identical to those in related case BC533212.
In BC533212, on October 28, 2015, the Markoff plaintiffs filed the operative fourth amended complaint for breach of contract, promissory estoppel, breach of good faith and fair dealing, negligence, intentional interference with contract, defamation, and false light. According to the allegations, on September 6, 2012, the Markoffs entered into a residential purchase agreement with the Sparks. In December 2012, BOA indicated its consent to the short sale. In January 2013, Schneiders, a BOA vice president, sent a letter to the Markoffs expressing that BOA will not continue to conduct mortgage transactions with them because of collusion, but BOA did not conduct an investigation into the collusion.
On July 11, 2016, plaintiff filed the instant motion to file a first amended complaint in BC569359. Defendants oppose.
Defendants? motion for judgment on the pleadings is set to be heard on August 3, 2016.
The Court considered the moving, opposition, and reply papers, and rules as follows.
Procedural Requirements
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; (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. CRC, rule 3.1324(a). The motion must also be accompanied by a supporting declaration that specifies (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. CRC, rule 3.1324(b).
Procedural Requirements Analysis
Here, plaintiff submits a copy of the proposed first amended complaint. There is no explanation, however, of how it is different from the operative complaint. The moving papers do not identify the allegations to be added or deleted by page, paragraph, and line number as required by the Rules of Court. Nor does counsel?s declaration indicate when the facts giving rise to the proposed amended allegations were discovered or why the request for amendment was not made earlier.
Additionally, counsel?s explanation for why the amendment is necessary and proper is unavailing and self-contradictory. Counsel suggests that the proposed FAC would address defendants? pending motion for judgment on the pleadings. Killian Decl. ? 3. The proper procedure to address a motion for judgment on the pleadings is to oppose it, not attempt to file a preemptive amended pleading. Further, if the motion for judgment on the pleadings is granted, plaintiff will have an opportunity to amend if he meets his burden of showing that the defects can be remedied by amendment. Moreover, the Court generously granted plaintiff permission to file an oversized opposition memorandum. Accordingly, plaintiff will not be ?permanently deprived of the opportunity to present a comprehensive and all-inclusive complaint,? contrary to counsel?s suggestion. Killian Decl. ? 2.
Therefore, the motion is procedurally defective.
Substantive Requirements
As to the merits, California courts employ a liberal approach to amendment of pleadings in light of a strong policy favoring resolution of all disputes between parties in the same action. Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 759-761. Motions for leave to amend, pursuant to Code of Civil Procedure section 473, will normally be granted unless the party seeking to amend has been dilatory in bringing the proposed amendment before the court and the delay in seeking leave to amend will cause prejudice to the opposing party if leave to amend is granted. Atkinson, supra, 109 Cal.App.4th at 759-761 (?It is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment. Furthermore, it is irrelevant that new legal theories are introduced as long as the proposed amendments relate to the same general set of facts?). A proposed amendment seeking recovery for the same accident and injuries as the original complaint complies with that test. Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 489. Absent prejudice, leave to amend must be sought and granted before summary judgment is considered. Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1264-1265; Atkinson, supra, 109 Cal.App.4th at 759-761. In other words, absent a showing of prejudice, delay in seeking an amendment alone does not justify the court in denying leave to amend. Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565. ?Of course, if the proposed amendment fails to state a cause of action, it is proper to deny leave to amend.? Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 230.
Substantive Requirements Analysis
As indicated above, plaintiff?s counsel?s declaration fails to indicate when the new facts were discovered and otherwise fails to comply with the Rules of Court.
The motion is DENIED. Moving party to give notice.