Drogos vs. Pointe Monarch Community Association, Burns
30-2015-0811629
The court grants Plaintiffs David Drogos and Diana Drogos? Motion for Leave to File a First Amended Complaint.
Amendment Adding a Claim for Nuisance
Plaintiffs seek leave to add a nuisance claim against existing Defendants Burns. Plaintiffs do not identify in their declarations when they discovered the facts that require the new nuisance claim and why the amendment was not made earlier. (CRC 3.1324.) Instead, Mr. Burns testifies that the improvements next door ?continue to disturb [his] enjoyment of [his] Property.? (Decl. of David Drogos ? 7.)? Mr. Burns also testifies that the lighting is extraordinarily bright, but does not indicate when he discovered this issue. (Id.) Mrs. Burns testifies using the same language. (Decl. of Diana Drogos ? 3.)
However, even assuming that Plaintiffs delayed in seeking leave to amend, delay is not enough to warrant a denial.? If delay in seeking the amendment has not misled or prejudiced the other side, the liberal policy of allowing amendments prevails. Indeed, it is an abuse of discretion to deny leave in such a case, even if sought as late as the time of trial. [Higgins v. Del Faro (1981) 123 CA3d 558, 564-565]
Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence or added costs of preparation, increased burden of discovery, etc. [Magpali v. Farmers Group, Inc.(1996) 48 CA4th 471, 486-488; see P & D Consultants, Inc. v. City of Carlsbad (2010) 190 CA4th 1332, 1345.]
Here, there is no substantive opposition to adding a nuisance claim.? Defendants do not argue that they would be prejudiced by the addition of a nuisance claim.
Therefore, prejudice has not been shown and the court grants leave to amend the Complaint to add the nuisance claim against Defendants Burns.
Amendment adding New Defendant Bernstein
Plaintiffs ask the court to add a defendant, Alan L. Bernstein, the President of Defendant HOA, to the causes of action for Breach of Fiduciary Duty, Negligence, and Declaratory Relief.
Defendant HOA argues that this amendment would violate CCP ? 425.15 and are also barred by the business judgment rule.
Ordinarily, the court will not consider the validity of the proposed amended pleading in deciding whether to grant leave to amend. Grounds for demurrer or motion to strike are premature. After leave to amend is granted, the opposing party will have the opportunity to attack the validity of the amended pleading. [See Kittredge Sports Co. v. Sup.Ct. (Marker, U.S.A.) (1989) 213 CA3d 1045, 1048].
The court therefore grants leave to amend.
Plaintiffs are ordered to serve all parties with the First Amended Complaint pursuant to the code forthwith.
As a new Defendant has been added, the court will consider continuing the trial date of 1/19/17.
Plaintiffs to give notice.