Motion for Leave to File First Amended Complaint
TENTATIVE RULING(S) FOR May 26, 2026 Department S37 – Judge Winston Keh This court follows California Rules of Court, rule 3.1308(b) for tentative rulings. (See San Bernardino Superior Court Local Emergency Rule 8.) Tentative rulings for each law & motion will be posted on the internet (https://www.sb-court.org) by 3:00 p.m. on the court day immediately before the hearing.
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RULING.
Diamond vs Lee et al
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TENTATIVE RULING(S):
Before the Court is Plaintiff’s Motion for Leave to File First Amended Complaint (Motion),
supported by a declaration from Hector C. Perez (Perez) and the Plaintiff. Defendants filed their
Opposition along with their evidentiary objections. Plaintiff replied including Plaintiff’s Response
to Evidentiary Objections.
A. Evidentiary Objections
Defendants object to three statements (Objections Nos. 5-7) made in paragraph 40 of Perez’s
declaration on the grounds of lack of personal knowledge, lack of foundation, hearsay and
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inadmissible opinion and conclusion.
In his response to Defendant’s evidentiary objections, Plaintiff cites Roche v. Hyde (2020) 51
Cal. App. 5th 757, 797 for authority that personal knowledge obtained by an attorney during the
course of discovery is knowledge that is imputed to his client.
The Court sustains Defendants’ Objection No. 5-6 as inadmissible opinion and conclusion but
overrules Defendants’ Objection No.
7.
B. Merits of Plaintiff’s Motion
Having considered the parties’ arguments, the Court grants Plaintiff’s Motion as judicial policy
favors resolution of cases on their merits and such requests are liberally construed. (Nestle v.
Santa Monica, supra, 6 Cal.3d at p. 939.) Leave to amend is liberally granted, even when a
summary judgment motion is pending. (Bostrom v. County of San Bernardino (1995) 35
Cal.App.4th 1654, 1663–1664.)
Here, Defendants have not shown the filing of the proposed Amended Complaint will prejudice
them and prejudice appears unlikely given the trial for this matter has not been set. Defendants
for authority that denial of leave to amend is proper where a motion summary judgment is
pending as it would allow responding parties to present a “moving target.” The facts here are
distinguishable from Melican, however, as the Melican court found the proposed amendment
was offered after a long, unexplained delay. Here, Plaintiff contends the amendments to the
pleading were brought on based on facts discovered after the deposition of defendant Soon and
comes after the initial Complaint was filed only six months earlier. As to Defendants’ arguments
pertaining to the validity of the proposed Amended Complaint, the Court finds Defendants’
arguments to be premature. (Kittredge Sports Co. v. Superior Court (Marker, U.S.A.), supra, 213
Cal.App.3d at p. 1048.) The proposed pleading states facts that are sufficient to constitute a
cause of action. (Foxborough v. Van Atta, supra, 26 Cal.App.4th at p. 230.)
With regard to Defendants’ contention that the proposed Amended Complaint is a sham
pleading, while there are certainly different facts pled, this does not render them contradictory.
Specifically, Defendants argue the initial Complaint alleged Plaintiff did not discover the breach
until September 19, 2025, whereas in the Amended Complaint, Plaintiff alleges he was aware of
the Property being in Soon’s name in 2016. The Amended Complaint, however, continues to
allege that Plaintiff did not discover that the Property was in Defendants’ names until September
19, 2025. In any event, such arguments are again premature.
The Court orders the parties to meet and confer as to whether a stipulation to continue the
hearing on the motion for summary judgment is appropriate.
RULING
For the foregoing reasons, the Court rules as follows:
(1) Sustains Defendants’ Evidentiary Objections No. 5-6 as inadmissible opinion and
conclusion but overrules Defendants’ Evidentiary Objection No. 7.
(2) Grants Plaintiff’s Motion and direct Plaintiff to file and serve the First Amended Complaint
within ten days of the court’s order.
(3) Orders counsel to meet and confer whether a stipulation to continue the hearing on the
motion for summary judgment would be appropriate.