ORDER TO SHOW CAUSE: AS TO CROSS COMPLAINT FILED ON 2/15/24 BY OC JONES & SONS, INC; PLAINTIFF’S MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT
CIVIL LAW & MOTION CALENDAR – Hon. Cynthia P. Smith, Dept. A (Historic Courthouse) at 8:30 a.m.
Greg Peters et al v. Susan Burnham Jevarian et al 23CV001586
[1] ORDER TO SHOW CAUSE: AS TO CROSS COMPLAINT FILED ON 2/15/24 BY OC JONES & SONS, INC
TENTATIVE RULING: In light of the ongoing litigation in the matter, the Court vacates the Order to Show Cause.
[2] PLAINTIFF’S MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT
TENTATIVE RULING: The motion is GRANTED. Plaintiff is granted 10 Court days’ leave, from entry of the instant order, to file a Second Amended Complaint in substantially the same form as that attached as Exhibit 2 to the Declaration of William M. Paoli.
The moving party failed to include in the notice of this motion proper notice of the Court’s tentative ruling system as required by Local Rule 2.9. Moving party is directed to immediately provide, by telephone call AND email, the missing notice to opposing party/ies forthwith. The requirements for requesting oral argument under Local Rule 2.9 remain in effect. However, the Court may grant belated requests for oral argument or continuance of hearing, made by any party who represents it did not timely receive the required notice, regardless of whether or not moving party is present at the hearing.
A. PRELIMINARY MATTERS
Plaintiff, Greg Peters moves, pursuant to Code of Civil Procedure sections 473, subdivision (a) and 576, and California Rule of Court, Rule 3.1324(a)(2), for an order granting leave to file a Second Amended Complaint.
B. LEGAL BACKGROUND
“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.” (
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Typically, a court will exercise its discretion liberally in favor of allowing amendment of the pleadings in order that litigation may be tried on its merits. (See Kauffman v. Bobo & Wood (1950) 99 Cal.App.2d 322, 323.) “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.” (Morgan v. Super. Ct. of Los Angeles County (1959) 172 Cal.App.2d 527, 530.)
C. ANALYSIS
The Court finds that the moving papers satisfy the requirements of California Rules of Court, rule 3.1324. (See Notice of Motion; see also Declaration of William M. Paoli (Paoli Decl.), and exhibits attached thereto.)
OC Jones & Sons, Inc. (OCJ), alone, opposes the instant motion. OCJ contends that the Paoli Decl. fails to set forth “[w]hen the facts giving rise to the amended allegations were discovered[] and . . . [t]he reasons why the request for amendment was not made earlier.” (Cal. Rules of Ct., rule 3.1324(b)(3) and (4).) The Court disagrees. (See Paoli Decl. at ¶¶ 9-12.)
OCJ correctly notes that if the moving party has delayed seeking leave to amend and if that delay works to prejudice an opposing party, then the court has discretion to deny a motion for leave to amend. (See Roemer v. Retail Credit Co. (1975) 44 Cal.App.3d 926, 939-40 [“The law is...clear that even if a good amendment is proposed in proper form, unwarranted delay in presenting it may – of itself – be a valid reason for denial”].)
OCJ contends that Plaintiff delayed bringing the instant motion for some ten months. (See, e.g., Opposition at 7:2-3.) It appears uncontested that the information leading to the amendment came to light in the form of responses by OJC, served on August 1, 2025, to discovery served by Plaintiff on January 9, 2024. (See Paoli Decl. at ¶¶ 5-9; see also Declaration of Saima Aslam at ¶¶ 5-7 (Aslam Decl.), and Opposition at 7:2-9).) While that date is, indeed, some ten months before the filing of the motion, OCJ ignores the fact that time thereafter was required to review those responses and conduct subsequent research. (See Paoli Decl. at ¶¶ 9-12.) The Court notes that OCJ’s discovery responses were served after an unexplained 18-month delay from the initial deadline for responding. (Id. at ¶ 5-8.)
OCJ fails to persuade the Court that it has suffered or will suffer prejudice from the delay. OCJ asserts that it “will incur prejudice as it has already expended a significant amount of time in preparing discovery responses and has spent time in preparing its PMK for a deposition before Plaintiffs’ motion is heard. If Plaintiffs are granted their Motion, OC Jones will be required to respond to similar discovery, to which it has already responded and potentially need to produce its witnesses to address any ‘new’ facts or allegations. The financial burden and effort necessary to respond to additional allegations and discovery constitutes prejudice.” (Id. at 7:18- 24.)
OCJ presents evidence, however, that Plaintiff’s counsel agreed to postpone the deposition of OCJ’s Person Most Knowledgeable until after hearing on the instant motion. (See
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