2018-00225166-CU-BC

Mahmoud Khattab vs. Osvaldo Martin

Nature of Proceeding: Motion to File Amended Complaint

Filed By: Wolter, Theodore S.

Plaintiff’s motion for leave to file a first amended complaint is GRANTED.

This is a construction defect action for construction of certain improvements to Plaintiff’s home. Plaintiff filed his initial complaint on 1/11/2018 for breach of contract, disgorgement of money paid to unlicensed contractor, and unfair business practices.

Plaintiff moves for leave to file an amended complaint to add a negligence cause of action.

Defendant opposes on the ground that Plaintiff has delayed seeking leave to filed the amended complaint and that the negligence cause of action conflates contract and tort liability.

It is well established that California courts have a policy of great liberality in allowing amendments at any stage of the proceeding so as to dispose of cases upon their substantial merits where the authorization does not prejudice the substantial rights of others. Indeed, it is a rare case in which “a court will be justified in refusing a party leave to amend his or her pleading so that he or she may properly present his or her case. Thus, absent a showing of prejudice to the adverse party, the rule of great liberality in allowing amendment of pleadings will prevail. (Board of Trustees v. Superior Court (2007) 149 Cal. App. 4th 1154, 1163.)

Here, Defendant has not shown prejudice. This case is in it infancy and no trial date has been scheduled. Moreover, any challenges to the merits of the negligence cause of action may be appropriately addressed with a pleadings motion.

Plaintiff may file and serve a first amended complaint (“FAC”) by no later than September 4, 2018, Response to be filed and served within 30 days thereafter, 35 days if the FAC is served by mail. (Although not required by any statute or rule of court, Plaintiff is requested to attach a copy of the instant minute order to the FAC to facilitate the filing of the pleading.)

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.