Case Number:?BC688983????Hearing Date:?January 07, 2019????Dept:?34

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

Moving Party:??Plaintiff Amir Litovich

Resp. Party:?????Defendant Mercedes-Benz USA, LLC, et al.

The motion is GRANTED.


Plaintiff commenced this action on January 5, 2018, asserting causes of action for: (1) Breach of Implied Warranty of Merchantability and (2) Breach of Express Warranty.

On November 29, 2018, Plaintiff filed a First Amended Complaint. This was clearly inadvertent, as Plaintiff simultaneously filed the instant motion for leave to file a First Amended Complaint, with the same document attached as an exhibit as a proposed First Amended Complaint.


Plaintiff moves for leave to file a first amended complaint, to assert additional causes of action for (3) Violation of Song-Beverly Consumer Warranty Act; (4) Violation of Consumers Legal Remedies Act; (5) Intentional Misrepresentation; (6) Negligent Misrepresentation; and (7) Violation of Bus. & Prof. Code ? 17200.

  1. Relevant Law

Under California Rules of Court rule 3.1324(a):

(a) 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.

Subdivision (b) of rule 3.1324 requires the motion be accompanied by a separate declaration, specifying: (1) the amendment’s effect, (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.

  1. Discussion

Plaintiff seeks to add several fraud-related causes of action to the suit. Plaintiff?s counsel declares that, upon receiving Defendant?s discovery responses on approximately November 1, 2018, Plaintiff discovered that the vehicle was previously repaired for the same defects Plaintiff has now identified, and that these prior defects and repairs were not properly disclosed to Plaintiff. (Zolonz Decl. ? 13.)

The vast majority of Defendant?s opposition is based on the merits of the action, namely that the CLRA claim is barred by procedural reasons and on the ground the other claims are not sufficiently specific. The Court is not inclined at this stage, however, to evaluate the potential merits of Plaintiff?s new causes of action. ?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.? (Edmon & Karnow,?Cal. Prac. Guide; Civ. Proc. Before Trial?(The Rutter Group 2017) ? 6:644; See?Kittredge Sports Co. v. Sup. Ct. (Marker, U.S.A.)?(1989) 213 Cal.App.3d 1045, 1048.) Indeed, Defendant goes beyond merely a demurrer, and seeks to summarily adjudicate Plaintiff?s claims. It does so by providing a declaration, with attached evidence, that purports to prove Plaintiff?s vehicle was properly inspected prior to sale, and that there was no prior accident. (See Khan Decl. ?? 3-4, Exhs. A & B.) The Court will not resolve these issues at this stage.

Additionally, Defendant argues the proposed amendment is prejudicial because Defendant has already deposed Plaintiff and inspected the vehicle. Defendant requests that, if leave is granted, Plaintiff should be required to both appear for another deposition and pay for the costs of that deposition. In reply, Plaintiff indicates he ?will agree to whatever reasonable conditions are necessary to ensure that all parties may sufficiently vet the claims and defenses,? (Reply p. 4:11-13), but does not agree to pay the costs of another deposition.??That issue is not before the Court at the present time, and the Court is not inclined to give an advisory opinion.??The Court expects the parties to meet-and-confer to determine what further discovery is needed to ?ensure that all parties may sufficiently vet the claims and defenses,???If the parties reach an impasse, the Court is always amenable to an Informal Discovery Conference with counsel to attempt to resolve these issues short of a formal motion.??(See Court?s Trial Orders, ? IV.)

Defendant also requests a trial continuance. Trial is currently set for April 08, 2019. Plaintiff states that he does not believe a further continuance is necessary, but will agree to one if the Court is inclined to condition granting leave to amend on such a continuance. Once again, this issue is not before the Court.??The Court has previously continued this case once, and indicated at that time that there would be no further continuances.??(See Minute Order, Nov. 8, 2018.)??Whether the Court should exercise its discretion to nonetheless continue the trial because it is granting this motion for leave to amend is an issue that can be briefed and argued by either party by means of a noticed motion.

?[T]he court?s discretion will usually be exercised liberally to permit amendment to the pleadings.? (Ibid.; See?Nestle v. Santa Monica?(1972) 6 Cal.3d920, 939.) ?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.? (Edmon & Karnow,?supra,?at ? 6:639;?Morgan v. Sup. Ct.?(1959) 172 Cal.App.2d 527, 530.) The policy in favor of allowing amendments is also so strong that ?courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any state of the proceedings, up to and including trial.? (Atkinson v. Elk Corp.?(2003) 109 Cal.App.4th?739, 761.)

In light of the liberality for permitting amendments, Plaintiff?s motion is GRANTED.