Motion for Leave to Amend Petition
July 20, 2026 Dept. 9 Probate Tentative Rulings
14. 24PR0301 MATTER OF REGINA MIESCH VS COLLEEN OBRIEN PETITION HEARING AND MOTION FOR LEAVE TO AMEND PETITION
This matter is before the Court on two matters: 1) Petitioner’s Petition for Removal of Trustee; For Breach of Trust; Financial Elder Abuse and for Award of Attorney Fees and Damages (the “Petition”) filed on November 7, 2024; and 2) Petitioner’s Motion for Leave to Amend Petition for Removal of Trustee; For Breach of Trust; Financial Elder Abuse and for Award of Attorney Fees and Damages.
MOTION FOR LEAVE TO AMEND
Petitioner moves for leave to amend the Petition. A Notice of Hearing was filed on June 18. 2026. There is no opposition to the motion in the Court’s file. Pursuant to California Rules of Court, Rule 3.1324, Petitioner identifies what allegations in the previous pleading are proposed to be deleted and what allegations are proposed to be amended. Petitioner erroneously filed the Amended Petition prematurely on June 15, 2026. Counsel for Petitioner and Respondents agreed despite this error, Petitioner would proceed with filing the underlying Motion for Leave.
A Declaration of Peter P. Vlautin, III and Memorandum of Points and Authorities provide that the proposed amendment adds a stand alone count of violation of Business and Professions Code § 7031 which is supported by Defendants’ responses to informal and formal discovery that were received in May, as well as the addition of facts to support these allegations. An amendment could not be made earlier, as the information was not known prior to the receipt of Respondents’ discovery responses. Such an amendment is necessary to permit this action to be decided on its merits.
Petitioner asserts Respondents will not be prejudiced, as they have been aware of the facts that give rise to the amendment and additional facts during the conversations between counsel, allegations in the original Petition, and briefs filed in the stipulation matter. Petitioner does not request Respondents to respond in quicker than the normal thirty days or longer if needed.
“The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.” Code of Civil Procedure, § 473(a)(1).
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July 20, 2026 Dept. 9 Probate Tentative Rulings
There is a general policy in this state of great liberality in allowing amendment of pleadings at any stage of the litigation to allow cases to be decided on their merits. (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047.) The rule of great liberality is particularly important where an amendment is sought to an answer. (Hulsey v. Koehler (1990) 218 Cal.App.3d 1150, 1159; Hyman v. Tarplee (1944) 64 Cal.App.2d 805, 813-814.) “...it is a rare case in which ‘a court will be justified in refusing a party leave to amend his pleadings so that he may properly present his case.’ (Citations omitted.)
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. (Citations omitted.)” (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.) “...absent a showing of prejudice to the adverse party, the rule of great liberality in allowing amendment of pleadings will prevail. (Higgins v.
Del Faro (1981) 123 Cal.App.3d 558, 564, 176 Cal.Rptr. 704.)” (Board of Trustees of Leland Stanford Jr. University v. Superior Court (2007) 149 Cal.App.4th 1154, 1163.) It is irrelevant that new legal theories are introduced in the proposed amended pleading as long as the proposed amendments relate to the same general set of facts in the pleading that will be superseded. (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.)
Petitioner’s Motion for Leave to Amend is granted. Respondent’s Response shall be filed within 30 days of the Court’s order. A hearing on Petitioner’s First Amended Petition is scheduled for September 14, 2026, at 8:30 a.m. in department nine.
TENTATIVE RULING #14: PETITIONER’S MOTION FOR LEAVE TO AMEND IS GRANTED. RESPONDENT’S RESPONSE SHALL BE FILED WITHIN 30 DAYS OF THE COURT’S ORDER. A HEARING ON PETITIONER’S FIRST AMENDED PETITION IS SCHEDULED FOR SEPTEMBER 14, 2026, AT 8:30 A.M. IN DEPARTMENT NINE.
NO HEARING ON THIS MATTER WILL BE HELD UNLESS A REQUEST FOR ORAL ARGUMENT IS TRANSMITTED ELECTRONICALLY THROUGH THE COURT’S WEBSITE OR BY TELEPHONE TO THE COURT AT (530) 621-6551 BY 4:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED. CAL. RULE CT. 3.1308; LOCAL RULE 8.05.07; SEE ALSO LEWIS V. SUPERIOR COURT, 19 CAL.4TH 1232, 1247 (1999).
NOTICE TO ALL PARTIES OF A REQUEST FOR ORAL ARGUMENT AND THE GROUNDS UPON WHICH ARGUMENT IS BEING REQUESTED MUST BE MADE BY TELEPHONE OR IN PERSON BY 4:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED. CAL. RULE CT. 3.1308; EL DORADO COUNTY LOCAL RULE 8.05.07. PROOF OF SERVICE OF SAID NOTICE MUST BE FILED PRIOR TO OR AT THE HEARING.
July 20, 2026 Dept. 9 Probate Tentative Rulings
LONG CAUSE HEARINGS MUST BE REQUESTED BY 4:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED AND THE PARTIES ARE TO PROVIDE THE COURT WITH THREE MUTUALLY AGREEABLE DATES ON FRIDAY AFTERNOONS AT 2:30 P.M.
LONG CAUSE ORAL ARGUMENT REQUESTS WILL BE SET FOR HEARING ON ONE OF THE THREE MUTUALLY AGREEABLE DATES ON FRIDAY AFTERNOONS AT 2:30 P.M. THE COURT WILL ADVISE THE PARTIES OF THE LONG CAUSE HEARING DATE AND TIME BY 5:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED. PARTIES MAY PERSONALLY APPEAR AT THE HEARING.
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