Waxman v. Superior Court

McCOY, J. pro tem.* This is a proceeding in mandate to require the Superior Court for Los Angeles County to grant petitioner’s motion for leave to file a first amended answer and certain counterclaims in the action entitled Dan Gershon v. Ben Waxman, et al., number 854894, now pending in that court.

In February 1965 plaintiff filed a complaint on a promissory note for $10,333.33 executed by the defendants Waxman and Willen. A month later defendants filed their answer, denying liability on the note and pleading, as an affirmative defense, that in September 1963 and in February 1964 they had given plaintiff certain notes secured by deeds of trust, each as evidence of defendants’ “obligation for a loan to be used to purchase a certain parcel of property”; that the note sued on was a part of the interest due on those two notes on April 15, 1964; that the indebtedness represented by the note sued on is “in effect and reality, a part of the initial obligations and indebtedness heretofore referred to under the promissory notes secured by the purchase-money deeds of trust,” and that plaintiff’s only remedy is by foreclosure.

On August 24, 1966, defendant Waxman, petitioner here, moved the trial court for leave to file his first amended answer and counterclaim to plaintiff’s complaint. No motion for leave to amend was filed by his codefendant Willen. Waxman’s motion was made on the ground that newly discovered facts required the amendment and counterclaim and that the motion should be allowed in the interest of justice. A copy of the proposed amended pleading was filed with the notice of motion. The court denied the motion on August 24. Waxman now claims that this was an abuse of the court’s discretion.

Section 473, Code of Civil Procedure, authorizes the trial court “in its discretion” to allow an amendment to any pleading “in furtherance of justice.” The policy of great liberality in permitting amendments at any stage of the proceeding was declared at an early date and has been repeatedly restated. “ It is occasionally said that liberality should be particularly displayed in allowing amendment of answers, on the theory that a plaintiff denied leave may often bring a new action while a defendant denied leave is permanently deprived of a defense.” (2 Witkin, Cal. Procedure (1954) Pleading, § 594, p. 1605.)

[670]The original answer to the complaint was filed in March 1965. In their first affirmative defense defendants alleged that the note sued on, dated April 15, 1964, “represented” defendants’ indebtedness to plaintiff on that date for the interest then due on two notes which they had previously executed in favor of plaintiff for money borrowed. It is alleged that the first of these notes for $81,000 with 10 percent interest was executed on September 23, 1963, and that the second for $200,000 with 10 percent interest was executed February 6, 1964. In the proposed amendment to the first affirmative defense it is alleged that on September 23, 1963, defendant Waxman executed two notes in favor of plaintiff in the combined principal sum of $81,000, and on the same day at the instance and request of plaintiff executed a note for $9,000 in favor of “plaintiff’s agent William McDonough”; that on January 6, 1964, he executed a note for $200,000 in favor of plaintiff and on the same day executed a note for $20,000 in favor of plaintiff’s agent McDonough also at plaintiff’s instance and request; that all of those notes were secured by deeds of trust; and that the note sued on represented the interest due on “said five promissory notes” on April 15, 1964. He does not propose, however, to change the nature of his first affirmative defense which is, as originally pleaded, that any action to recover his indebtedness to plaintiff is restricted by section 726, Code of Civil Procedure, “to an action of foreclosure on the parcels of land securing said indebtedness” and that his recovery is limited by section 580b “to only the proceeds of such foreclosure sale. ’ ’