2011-00111418-CU-PN

Larry Bird vs. Gary G Perry

Nature of Proceeding: Motion to File Amended Complaint

Filed By: Nolen, Rudy

Plaintiff’s motion for leave to amend complaint is DENIED.

Moving counsel is admonished because the notice of motion does not provide notice
of the Court’s tentative ruling system, as required by Local Rule 1.06, and does not
provide the correct address for this Court’s Dept. 54. Moving counsel is directed to
contact opposing counsel forthwith and advise him/her of Local Rule 3.04 and the
Court’s tentative ruling procedure and the manner to request a hearing. If moving
counsel is unable to contact opposing counsel prior to hearing, moving counsel
is ordered to appear at the hearing in person or by telephone.

Plaintiff’s motion fails to comply with the mandatory provisions of CRC Rule 3.1324(a)
(2) and (3) since the motion fails to state what allegations are proposed to be deleted
and/or added, along with the location of such allegations. While the motion states that
two new causes of action are proposed to be added, it further indicates that other
changes are being made to the General Allegations on which all causes of action are
based in whole or part but plaintiff provides no description or location of these
changes.
Similarly, the motion is also not supported by a declaration which complies with the
mandatory provisions of CRC Rule 3.1324(b)(3)-(4). Plaintiff appears to indicate that
the proposed amendments are based on facts previously adduced through discovery
and in fact, he describes this evidence as “nothing new or undiscovered.” (Mov. Memo.
P&A, p.4:5-6.) However, despite CRC Rule 3.1324(b)’s express requirements, the
moving declaration not only fails to state when the facts giving rise to the amended
allegations were discovered but also fails to explain why the motion to amend was not
brought earlier. As these are mandatory requirements with which plaintiff failed to
comply, the motion must be denied.

The failure to comply with CRC Rule 3.1324(b)(3)-(4) is particularly troubling since this
matter was originally set for trial on 9/9/2013 but is now set for 10/21/2013, less than
three (3) weeks following the hearing on this motion. Consequently, the Court is
unable to conclude that plaintiff has acted with reasonable diligence in seeking to
amend the complaint.

Additionally, although plaintiff insists that the proposed amendments to the complaint
are not based on any newly discovered facts and will not require any additional
discovery (and although neither of these statements appears to be supported by a
competent declaration), this Court is not persuaded that defendant should be
effectively precluded from conducting appropriate discovery prior to commencement of
trial. In fact, the Court believes that defendant will likely be unduly and substantively
prejudiced if not granted a reasonable opportunity to conduct discovery on the new
substantive allegations which apparently could have and should have been added
much earlier in this action.

Finally, while defendant raised a number of potentially valid challenges to the merits to
the two newly proposed causes of action, a trial court will ordinarily not consider such
challenges to the proposed amended pleading in connection with the motion to amend
but rather only pursuant to an appropriate noticed motion after the amended pleading
is filed.

This minute order is effective immediately. No formal order or other notice is required.
(Code Civ. Proc. §1019.5; CRC Rule 3.1312.)