Eichler Homes of San Mateo, Inc. v. Superior Court

SCPIAUER, J.

— Petitioner seeks mandate to compel the superior court to grant petitioner’s motion to amend a ‘ ‘ Third Amended Complaint” in accord with a proposed “Second Amendment to Plaintiff’s Third Amended Complaint.” Respondent court, instead of permitting the amendment in the manner requested by petitioner, granted petitioner leave “to file new and separate cause of action, incorporating the matters involved in the requested amendment.” We have concluded that petitioner has not shown how it could be prejudiced by amending in the manner permitted by the order of respondent court rather than in the manner sought by petitioner. In the circumstances we will not interrupt the normal course of proceedings in the trial court merely to compel that tribunal to change the language of a ruling which is in operative effect correct.

Petitioner brought an action against L. C. Smith Company for breach of a contract to excavate and grade land. Paragraph III of the first count of the “Third Amended Complaint” alleged “That within four years last past and on or about June 16, 1955, defendant L. C. Smith Company entered into a written contract with [petitioner’s predecessors in interest] ; that under and pursuant to said contract said defendant was required to clear, grub, excavate and grade a certain tract of land known as Tract 720 and 722 Highlands No. 2 and No. 3 . . . .”

After petitioner filed its complaint containing the just quoted averment, it learned that its description of the land was inaccurate. It sought leave to amend by substituting for the just quoted second clause of paragraph III the following: “that under and pursuant to said contract, said defendant was required to clear, grub, excavate and grade a certain tract of land ... as described in the aforesaid written contract. . . .” The words of the contract are not pleaded, and if the pro

[847]

posed amendment were made the complaint would contain

no

description of the land rather than an

inaccurate

description.

Respondent court made the following order: “Motion [for leave to amend] granted to this extent — that plaintiff is permitted to file new and separate cause of action, incorporating the matters involved in the requested amendment.”