Case Number: BC641341 Hearing Date: March 08, 2018 Dept: 92

MICHAEL SCOTT LOELF,

Plaintiff,

vs.

MICHAEL ANGELO CATALANO, and

DOES 1 through 50,

Defendants.

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Case No.: BC641341

[TENTATIVE] ORDER GRANTING MOTION FOR LEAVE TO AMEND ANSWER

Dept. 92

Hon. Marc Gross

1:30 p.m.

March 8, 2018

The Motion of Defendant Michael Angelo Catalano for Leave to Amend Answer is GRANTED.

Plaintiff Michael Scott Loelf (“Plaintiff”) filed his Complaint, on November 21, 2016, against defendant Michael Angelo Catalano (“Defendant”), alleging causes of action for (1) Negligence; and (2) Negligence Per Se. Plaintiff alleges that, on July 23, 2016, Plaintiff and Defendant were traveling westbound along Westchester Parkway. (Compl., ¶¶ 7-8.) Defendant allegedly initiated a U-turn midblock and collided with Plaintiff’s vehicle. (Id. at ¶ 8.)

Defendant moves for leave to amend his Answer to include comparative negligence as an affirmative defense. Defendant asserts that he has learned of new facts in discovery that are sufficient to establish that Plaintiff was comparatively negligent in the automobile accident.

The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading. (CCP §§ 473, 576.) Judicial policy favors resolution of all disputed matters between the parties and, therefore, leave to amend is generally liberally granted. (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) Ordinarily, the court will not consider the validity of the proposed amended pleading in ruling on a motion for leave since grounds for a demurrer or motion to strike are premature. (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.)

The application for leave to amend should be made as soon as the need to amend is discovered. (See Cal. Rules of Court, Rule 3.1324(b)(3)-(4).) The closer the trial date, the stronger the showing required for leave to amend. (See Duchrow v. Forrest (2013) 215 Cal.App.4th 1359, 177-78.) If the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the court has the discretion to deny leave to amend. (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.) Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, or added costs of preparation such as an increased burden of discovery. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488.)

Here, the reasons set forth by Defendant are sufficient to establish that it is proper to permit Defendant to amend his Answer. Defendant moves for leave to amend his Answer to include a comparative negligence defense in light of new facts uncovered in discovery. There is nothing that suggests Defendant has been dilatory in seeking this amendment.

Further, there is nothing that shows Defendant’s amendment to his Answer will prejudice Plaintiff. The current trial date several months away in September 11, 2018, so each party will have a reasonable opportunity to conduct discovery on this issue. Conversely, Defendant may be substantially prejudiced if denied a viable defense to Plaintiff’s claims. Plaintiff does not oppose this motion and therefore does not show how he would be prejudiced by permitting Defendant to amend his Answer. Thus, the court finds that the furtherance of justice and the liberal policy of resolving actions on the merits support granting Defendant leave to amend.

Therefore, for the foregoing reasons, Defendant’s motion for leave to amend answer is granted. The proposed First Amended Answer is deemed filed and served as of this date.