Clevenger vs. Welch Foods Inc.

“The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading[.]” (CCP § 473(a)(1).) “[T]rial courts are to liberally permit such amendments, at any stage of the proceeding[.]” (Hirsa v. Superior Court (1981) 118 Cal. App. 3d 486, 488-89.) A court’s discretion is usually exercised liberally to permit amendment of the pleadings, and it is a rare case in which denial of leave to amend can be justified. (See, e.g., Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) “[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 v.

Elk Corp. (2003) 109 Cal. App. 4th 739, 761.) “[I]t is irrelevant that new legal theories are introduced as long as the proposed amendments ‘relate to the same general set of facts.’” (Id.) “Leave to amend may be denied if there is prejudice to the opposing party, such as delay in trial, loss of critical evidence, or added costs of preparation.” (Kolani v. Gluska (1998) 64 Cal. App. 4th 402, 412.)

“[L]eave to amend is liberally granted, even when a summary judgment motion is pending.” (Willemsen v. Mitrosilis (2014) 230 Cal. App. 4th 622, 633.) “Where the complaint is challenged and the facts indicate that a plaintiff has a good cause of action which is imperfectly pleaded, the trial court should give the plaintiff an opportunity to amend.” (Kirby v. Albert D. Seeno Constr. Co. (1992) 11 Cal. App. 4th 1059, 1067.)

In this action, Plaintiffs allege unfair competition claims under Cal. Business & Professions Code §17200, et seq., against both Defendants Welch Foods, Inc. (“Welch”) and PIM Brands, Inc. (“PIM”) for alleged unlawful nonfunctional slackfill in the packaging of certain boxes of fruit snacks. In the currently operative First Amended Complaint (“FAC”), Plaintiffs allege that “PIM participates in the making, marketing, and distribution of the subject products for Welch Foods, whereby Welch Foods and PIM jointly control and share responsibility for the manufacture, branding, marketing, and/or distribution of the subject products,” and that “[a]t all relevant times the subject packaging is and was subject to approval by Welch.” (FAC ¶ 9.)

In Defendant Welch’s Motion for Summary Judgment, Welch contend that Plaintiffs’ secondary liability theories against Welch of aiding and abetting, agency, conspiracy, or

furnishing the means, were not pled in the FAC. (ROA 282 at p. 10 [“Plaintiffs did not plead any of these theories in the FAC . . .”].) Yet, Welch seeks summary judgment partially on the grounds that “Plaintiffs Have No Evidence To Suggest Secondary Liability.” (Id.)

Consequently, Plaintiffs now seek to amend the complaint to add the following allegations to more explicitly set forth their secondary liability theories: 10. Defendant Welch’s is liable both as a direct (primary) participant in the violations of the UCL and under four doctrines of secondary liability: (i) ostensible agency, (ii) aiding and abetting, (iii) furnishing the means for the unlawful conduct, and (iv) conspiracy.

11. Welch’s knows consumers believe it manufactures and sells Welch’s Fruit Snacks; it allows that belief to permeate the market and profits from it. PIM had statutory and contractual duties to ensure the fruit snacks were not unlawfully slack-filled. Welch’s knew or was willfully blind to the unlawful slack-fill. Welch’s approved all of the fruit snacks packaging used by PIM and had the ability to prevent PIM from selling unlawfully slack-filled containers. All of the fruit snack products were formulated and marketed with Welch’s input and approval. Welch’s even provided some of the ingredients for the fruit snacks.

Defendants argue that these amendments were unreasonably delayed and allegedly introduce new theories of liability. However, it appears that Plaintiffs did not seek to amend the complaint previously because they believed the secondary liability theories were already encapsulated in the previous complaints. There is no evidence of any strategic delay in making these amendments. Plaintiffs note that the first time Defendants challenged the adequacy of the pleadings was in Welch’s February 26, 2026 Motion for Summary Judgment (“Welch’s MSJ”), despite knowing since at least December 1, 2025 the nature of Plaintiffs’ secondary liability theories. (Lanza Dec., Ex. 1.)

This Motion was made only two months after Welch’s MSJ, and only after Defendants refused to stipulate to Plaintiffs filing a Second Amended Complaint. (Lanza Dec. ¶¶ 11-12.) Such delay is not unreasonable under the circumstances.

Defendants also contend they would be prejudiced by these amendments simply because of “the possibility that Welch’s may have to revise and refile its MSJ, and the delay of a ruling on summary judgment . . .” (Opp. at p. 9.) However, in this action, no trial date has been set and discovery is ongoing. Thus, the type of prejudice that warrants denial of leave to amend (such as loss of evidence or delay in trial) are not present. Further, Welch has failed to explain how allowing these amendments would require Welch to re-file or revise its MSJ as Welch already addressed these theories of secondary liability in its MSJ.

In addition, it is undisputed that Plaintiffs have alleged direct liability against Welch from the start, so any costs or expense incurred by Welch to litigate this action to date would have been incurred regardless of these amendments supporting Plaintiffs’ alternative theories of secondary liability.

Defendants also contend that these amendments fail to state a claim and are futile. However, these amendments concern theories of liability, not causes of action, so any failure to state a claim arguments are inapplicable. (See, e.g., Applied Equip. Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal. 4th 503, 510– 11 [“Conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration.”].)

Further, Defendants’ claim of futility is entirely based on disputed issues of fact as to Welch’s involvement in the packaging of the subject products. An amendment is only futile if “based on the undisputed facts presented, no liability would lie under the new claim.” (Melican v. Regents of Univ. of California (2007) 151 Cal. App. 4th 168, 176 [emphasis added].)

To the extent that Defendants dispute the merits of Plaintiffs’ secondary theories of liability, those arguments should be the subject of Welch’s MSJ or argued at trial, not as part of this pleadings motion. To adequately plead a claim, a plaintiff is “only required to plead ultimate facts.... Whether [they] can produce at trial, or in response to a motion for summary judgment, evidence that will in fact support all or any of [their] allegations ... is another matter.” (Roger v. Cnty. of Riverside (2020) 44 Cal. App. 5th 510, 533 [emphasis in original].) “[A] plaintiff is required only to set forth the essential facts of his case with reasonable precision and with particularity sufficient

to acquaint a defendant with the nature, source and extent of his cause of action.” (Id.)

In light of the liberal policy for granting leave to amend, and as Defendants have failed to demonstrate great prejudice or futility of these amendments, the court grants Plaintiffs’ Motion for Leave to File A Second Amended Complaint.

Plaintiffs are ordered to give notice of this ruling to Defendants.