Case Number: GC050829    Hearing Date: November 07, 2014    Dept: B

NOTICE: Department B will be dark on November 7, 2014. Please review the following tentative ruling. If you wish to have oral argument, please contact opposing counsel and agree upon one of the following dates for argument: November 21 or December 5. Then, please send an email to lmcfarlane@lacourt.org stating your case number, the agreed upon date for argument, and which party will give notice. The email must be received by 4:30 p.m. on November 7, 2014, or the Court’s tentative ruling will be the ruling and order of the Court. You may also send an email if you submit to the tentative ruling.

TENTATIVE RULING:

Motion to Amend Complaint

This case arises from the Plaintiff’s claim that the Defendants have breached a number of settlement agreements regarding skilled nursing facilities in Hemet, Fresno, and Pasadena. The Plaintiff seeks remedies that include damages, judicial foreclosure on the property of the Defendants, declaratory relief, and specific performance of the agreements.

The trial is set for February 9, 2015.

This hearing concerns the Plaintiffs’ motion for leave to file a Third Amended Complaint. The hearing was continued from October 3, 2014.

The Plaintiffs seek to amend the Second Amended Complaint by:

1) adding a twelfth cause of action for default under security agreement;
2) adding allegations that plaintiff’s interests in EBDMZR have been damaged;
3) updating the amount of estimate interest and penalties.

CCP section 473(a) permits the Court to grant leave to a party to amend a pleading. The Court’s discretion regarding granting leave to amend is usually exercised liberally to permit amendment of pleadings. Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939. If a motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend. Morgan v. Superior Court of Los Angeles County (1959) 172 Cal. App. 2d 527, 530.

CRC rule 3.1324 required the Plaintiff’s motion to include a copy of the proposed pleadings, to identify the amendments, and to be accompanied by a declaration including the following facts:

1) The effect of the amendment;
2) Why the amendment is necessary and proper;
3) When the facts giving rise to the amended allegations were discovered; and
4) The reasons why the request for amendment was not made earlier.

The Plaintiff’s motion includes a copy of the proposed Third Amended Complaint in exhibit 2 and it identifies the amendments on page 3 of the memorandum.

The initial declaration accompanying the Plaintiff’s motion did not include the required facts. After the hearing was continued, the Plaintiff’s attorney, Thomas Collins, filed a supplemental declaration that includes the required facts.

Further, the facts in Mr. Collins’ supplemental declaration are sufficient to demonstrate that the motion was timely when it was filed on September 4, 2014. Mr. Collins provides facts to demonstrate that the motion was filed after the Plaintiff received discovery responses from the Defendant on August 25, 2014 that include facts at issue in the proposed amendments, e.g., information regarding the QA fees at issue. Since the Plaintiff filed the motion for leave to amend ten days after he received the discovery responses, the Plaintiff’s motion is timely.

The trial date is February 9, 2015. Since trial is three months away, the Defendants will have sufficient time to prepare a defense to the new claims.

Therefore, the Court grants the Plaintiff’s motion for leave to amend.