Bello vs. Thapa

As the Court of Appeal has explained:

[T]rial courts should be guided by two general principles: (1) whether facts or legal theories are being changed and (2) whether the opposing party will be prejudiced by the proposed amendment. Frequently, each principle represents a different side of the same coin: If new facts are being alleged, prejudice may easily result because of the inability of the other party to investigate the validity of the factual allegations while engaged in trial or to call rebuttal witnesses. If the same set of facts supports merely a different theory – for example, an easement as opposed to a fee – no prejudice can result.

(City of Stanton v. Cox (1989) 207 Cal.App.3d 1557, 1563.)

With respect to the first requirement, “[t]he basic rule applicable to amendments to conform to proof is that the amended pleading must be based upon the same general set of facts as those upon which the cause of action or defense as originally pleaded was grounded.” (Union Bank v. Wendland (1976) 54 Cal.App.3d 393, 400-401.) In other words, “[t]he power to permit amendments is interpreted very liberally as long as the plaintiff does not attempt to state facts which give rise to a wholly distinct and different legal obligation against the defendant.” (Herrera v. Superior Court (1984) 158 Cal.App.3d 255, 259.)

With respect to the second requirement, prejudice that may support denying amendment includes “delay in trial, loss of critical evidence, or added costs of preparation.” (Solit v. Tokai Bank, Ltd. New York Branch (1999) 68 Cal.App.4th 1435, 1448.)

The trial court has wide discretion in determining whether to allow amendment, but “the appropriate exercise of that discretion requires the trial court to consider a number of factors: ‘including the conduct of the moving

party and the belated presentation of the amendment.’” (Leader v. Health Ind. of America, Inc. (2001) 89 Cal.App.4th 603, 613, quoting Bedolla v. Logan & Frazer (1975) 52 Cal.App.3d 118, 135-136, italics original.)

However, it is “an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048; see also Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530 [”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 . . . .”], citations and quotations omitted.)

It is also an abuse of discretion to refuse amendment where that “results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense.” (Morgan v. Superior Court, supra, 172 Cal.App.2d at p. 530.) This is true even if leave to amend is sought as late as the time of trial or even during trial. (See Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565; Rainer v. Community Memorial Hosp. (1971) 18 Cal.App.3d 240, 251-256.) Thus, “[i]n the furtherance of justice, trial courts may allow amendments to pleadings and if necessary, postpone trial.” (Honig v. Financial Corp. of America (1992) 6 Cal.App.4th 960, 965.)

Here, Plaintiff seeks leave to amend the Complaint in order to add Patricia Garcia as an additional plaintiff.

Because the First Amended Complaint only adds an additional party, it is based on the same general set of facts as the original Complaint. Thus, Plaintiff does not seek to change the facts or theories of the case.

Further, Plaintiff states that Patricia Grace was inadvertently omitted from the original Complaint only through attorney inadvertence. (See Decl. of Dmitri N. Chtyrev, Esq. in Supp. of Mot. for Leave to File First Amend. Compl., ¶¶ 4, 6.)

Further, there was no undue delay in attempting to correct this oversight. Here, Plaintiff’s Counsel contacted Defendant’s Counsel about filing the

First Amended Complaint about 3 1⁄2 months after filing the Complaint. (See id., ¶ 9.)

When Defendant refused to stipulate to amend the original Complaint, Plaintiff then moved to amend about 5 months after filing the original Complaint. (See ROA #2, #33.)

Defendant contends that Defendant will be prejudiced by the amendment because some discovery has been completed and may need to be redone in light of the amendment.

However, this is an issue that arises any time there is an amendment to the pleadings. It is not the type of undue prejudice sufficient to overcome the policy of liberality in allowing amendments, even up to and during trial.

Further, trial is not set until March 15, 2027, so that all parties will have sufficient time to conduct discovery and prepare for trial.

Defendant also argues that the amendment is futile because the statute of limitations has run on Patricia Grace’s claims.

Plaintiff responds that the added claims will relate back to the original Complaint.

While Defendant disputes this, “the 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.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.)

Thus, given the policy of liberality in allowing amendment of pleadings, the fact that the amendment will not change the basic facts or theory of the case, and the lack of prejudice to Defendant, the court will grant the motion for leave to amend.

Plaintiff shall give notice of this ruling.

8 Solter vs. Capsavage Motion to Expunge Lis Pendens

Cross-Complainants Sigthora V. Solter’s and Shirley Capsavage’s Motion for an Order