Case Number:?BC596121????Hearing Date:?January 09, 2018????Dept:?37

CASE NO.:????????????????????????????BC596121

HEARING DATE:?????????????????1/9/18

DEPARTMENT:???????????????????37

CALENDAR NO.:?????????????????8

TRIAL DATE:????????????????????????3/27/18

NOTICE:????????????????????????????????OK

SUBJECT:?????????????????????????????Motion for Leave to File First Amended Complaint

MOVING PARTY:?????????????????Plaintiff Sergio Jesus Hernandez

OPPOSING PARTY:???????????Defendant Martha B. Silva

COURT?S TENTATIVE RULING

????????????The court GRANTS the motion for leave to amend.??At the hearing, the parties should be prepared to discuss dates for the continued trial.??Counsel for Plaintiff to give notice.

STATEMENT OF THE CASE

????????????This action arises from Defendant Luz Maria Tecolapa (?Tecolapa?)?s alleged breach of a contract for the purchase of a food truck (the ?Subject Vehicle?) from Plaintiff Sergio Jesus Mateos Hernandez (?Hernandez?).??Plaintiff alleges that Tecolapa has not paid $10,000 due under the parties? written agreement and has additionally committed fraud and conversion by wrongfully submitting documents to the California Department of Motor Vehicles to cause an official change of title record to indicate that Tecolapa is the sole owner of the Subject Vehicle ?free and clear? of any liens or Plaintiff?s interest in the Subject Vehicle.

????????????Plaintiff filed the Complaint on September 29, 2015, alleging four causes of action for: (1) breach of contract; (2) common counts; (3) intentional tort – conversion; and (4) fraud against Defendant Tecolapa.??On September 29, 2016, Plaintiff filed two amendments to the Complaint to name notary Defendants Rudy Gutierrez (?Gutierrez?) and Martha B. Silva (?Silva?) as Doe Defendants to this action.

????????????Plaintiff now seeks leave to file a First Amended Complaint (?FAC?) and to add the following causes of action: (5) breach of contract against Defendant Silva; (6) general negligence against Silva; and (7) general negligence against Gutierrez.??Defendant Silva opposes the motion.

DISCUSSION

I.??????????Procedural Considerations

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????????????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; 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. (Cal. Rules of Court, 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.??(Id., rule 3.1324(b).)

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????????????Plaintiff has attached a copy of the proposed FAC to the motion.??(Declaration of Armando Galvan (?Galvan Decl.?) Ex. 2).??The motion states that the proposed FAC changes paragraph 1 of page PLD-C-001 page 1 to name the two notary Defendants and adds the fifth, sixth, and seventh causes of action.??(Mot. 5.)??Thus, the motion complies with the procedural requirements of California Rules of Court, rule 3.1324(a).

????????????In the accompanying Galvan Declaration, Plaintiff?s counsel Galvan attests that the amendment is necessary to add essential allegations relating to Plaintiff?s claims against the Defendant notaries, particularly in light of the upcoming trial.??(Galvan Decl. ? 1.)??Galvan declares that the notary Defendants made general appearances in September 2017 and that Plaintiff, through his present counsel, attempted to secure a stipulation to the proposed FAC but was unsuccessful.??(Id.?? 2.)??Galvin further attests that he is relatively new as Plaintiff?s counsel to the case and has sought to amend promptly after learning that Plaintiff?s former counsel had not adequately alleged the claims he now seeks to assert against the notary Defendants.??(Id.??5.)??Galvan?s declaration is sufficient to substantially meet the requirements of rule 3.1324(b).??The court now turns to the substantive considerations of the motion.

II.?????????Substantive Considerations

Code of Civil Procedure section 473, subdivision (a)(1), permits the court, in its discretion, to allow an amendment to any pleading ?upon any terms that may be just.???Generally, California courts employ a liberal approach to amendment of pleadings in light of the strong policy favoring resolution of all disputes between parties in the same action.??(See?Nestle v. City of Santa Monica?(1972) 6 Cal.3d 920, 939;?Atkinson v. Elk Corp.?(2003) 109 Cal.App.4th 739, 759-761 (Atkinson).)

Motions for leave to amend 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.??(See?Atkinson,?supra, 109 Cal.App.4th at p. 761 [? ?[I]t is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.? [Citations.]??Furthermore, ?it is irrelevant that new legal theories are introduced as long as the proposed amendments ?relate to the same general set of facts.? [Citation.]? ?]; see also?Hirsa v. Superior Court?(1981) 118 Cal.App.3d 486, 490.)??Indeed, ?courts are much more critical of proposed amendments … when offered after long unexplained delay or on the eve of trial [citations], or where there is a lack of diligence, or there is prejudice to the other party [citations].???(Permalab-Metalab Equipment Corp. v. Maryland Cas. Co.?(1972) 25 Cal.App.3d 465, 472 (Permalab-Metalab).)

????????????Defendant Silva contends that the subject motion should be denied because it alleges a new legal theory on the eve of trial after an unwarranted delay, such that she would be severely prejudiced by the amendment.??Trial is currently set to being on March 27, 2018, which is over two months away.

????????????The Complaint alleged four causes of action against Tecolapa and Doe Defendants based on Tecolapa?s alleged actions in refusing to make payment under the parties? alleged contract and her submission of documents that allegedly included false and/or forged information to indicate that she was the sole owner of the Subject Vehicle.??Plaintiff amended the Complaint to name Gutierrez and Silva as Doe Defendants 1 and 2 on September 29, 2016.??The fifth and sixth causes of action seek to allege claims for breach of contract and negligence against Silva for her actions in drafting the written contract between the parties.

????????????First, Silva contends that prejudice exists when a proposed amendment to a pleading contains a new legal theory for which additional discovery will be necessary.??(Opp. 8, citing?Green v. Rancho Santa Margarita Mortg. Co.(1994) 28 Cal.App.4th 686, 693-694 (Green).)??Green, however, does not stand for the proposition that leave to amend may be denied if a party seeks to add a new legal theory, as Silva would suggest.??Green?involved circumstances where a defendant sought to amend its answer to include an affirmative defense after the case had been reversed on appeal on a procedural matter and remanded for a new trial on one of the plaintiff?s causes of action.??(Id.?at p. 691.)??The?Green?Court found that the defendant?s original answer left no room for the affirmative defense that the defendant sought to add and that the defendant?s decision not to assert the affirmative defense in the original verified answer was a strategic decision that the defendant had made.??(See?id.?at pp. 692-693.)??Based on the facts and procedural posture of that case, the Court of Appeal held that the?Green?plaintiff would be substantially prejudiced by allowing amendment and that the trial court did not exceed the bounds of reason in denying leave to amend.??(Id.?at pp. 693-694.)??Green?does not stand for the proposition that the assertion of a new legal theory and the need for additional discovery is sufficiently prejudicial to warrant denial of leave to amend.[1]

????????????To the contrary, California Courts have held that??it is irrelevant that new legal theories are introduced as long as the proposed amendments ?relate to the same general set of facts.? ???(Atkinson,?supra, 109 Cal.App.4th at p. 761.)?Here, the facts underlying Plaintiff?s proposed new claims against Silva involve the same contract at issue in Plaintiff?s claims against Tecolapa and thus ?relate to the same general set of facts? as the Complaint.??Accordingly, the fact that Plaintiff seeks to allege new legal theories, alone, is insufficient grounds to deny leave to amend.

?????????????Silva next contends that prejudice exists where a party seeks leave to amend on the eve of trial.??(Opp. 8, citing?Magpali v. Farmers Group,?supra?(1996) 48 Cal.App.4th 471, 486 (Magpali).)??Trial in this matter is over two months away, discovery is ongoing, and the parties have not yet filed their motions in limine or begun their final trial preparations.??Here, unlike in?Magpali, Plaintiff has not filed the motion on the ?eve of trial.???Silva has not identified any prejudice she would face if the court were to continue the trial aside from the additional expense and attorney?s fees involved in conducting additional discovery and defending against the additional claims.??As stated above, that is not enough to warrant denial of this motion.??Accordingly, the court finds that Silva would not be substantially prejudiced if the court were to grant leave to amend and to continue the trial to allow Defendants the opportunity to challenge the additional claims through demurrer or other appropriate proceedings.

Finally, Silva contends that even if prejudice were not present, the court should not allow Plaintiff leave to amend because he was aware of the facts of his new claims at the time he filed the original Complaint and has unduly delayed in bringing this motion.??(Opp. 8.)??California Courts have recognized that ?[i]t is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.???(Atkinson,supra, 109 Cal.App.4th at p. 761.)??Silva?s cited cases do not support the proposition that leave to amend may be denied where there is no prejudice to the opposing party.??As stated above, Silva has not demonstrated that sufficient prejudice exists to warrant denial of the motion for leave to amend.??Given the strong California policy favoring amendment, the court finds that Plaintiff?s delay, alone, is insufficient to warrant denial of this motion.??(SeeAtkinson,?ibid.)

For these reasons, the court GRANTS the subject motion for leave to amend.??At the hearing, the parties should be prepared to discuss?dates for the continued trial.

[1]?Silva argues that she would be prejudiced because the proposed additional allegations would require additional discovery that would cause additional expenses and attorney?s fees.??Silva offers no legal authority for the proposition that the cost of additional discovery establishes sufficient prejudice to deny amendment.??The court further notes that if Plaintiff does not assert these claims as additional claims in this suit, he could assert them in a separate action against Silva.