The court grants Plaintiff?s motion for leave to file a first amended complaint to add promissory estoppel cause of action.? Plaintiff is ordered to electronically file the First Amended Complaint within seven days and serve all parties pursuant to the Code of Civil Procedure.
?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. Sup.Ct. (1959) 172 Cal.App.2d 527, 530.)
If the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the judge has discretion to deny leave to amend. (See Hirsa v. Superior Court (Vickers) (1981) 118 Cal.App.3d 486, 490.)? However, if the 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 Cal.App.3d 558, 564-565.)
Plaintiff asserts that it did not seek amendment sooner because depositions and transcripts that established alternative and inconsistent allegations were not completed until recently.? Specifically, Plaintiff argues that Defendant?s claims adjuster, Lex Anderson, testified at his deposition that Travelers Commercial Insurance Company would issue pay for services at rates no less than amounts calculated under Xactimate estimating software.? Plaintiff is permitted to plead alternative or inconsistent theories in its complaint.? (Rader Co. v. Stone (1986) 178 Cal.App.3d 10, 29.)? Plaintiff has not been dilatory in seeking leave to amend.
Defendant Travelers Commercial Insurance Company (?Travelers?) argues that the promissory estoppel claim lacks merit.? However, the court ordinarily will not consider the validity of the proposed amended pleading in deciding whether to grant leave to amend. (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048 [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].)
The court finds that Defendants have not shown prejudice. ??(Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488.)? In addition, the court has not made any determination of the merits of the pending motions for summary judgment and/or summary adjudication.
The parties should be prepared to discuss at the hearing what dates they are available for trial or a trial setting conference, as the court is inclined to continue trial to allow sufficient time for Defendants to file additional motions for summary judgment or summary adjudication, should they choose to file them, and to conduct any additional discovery.
Plaintiff shall give notice of the ruling.