18-CIV-03326 MICHAEL D. LIBERTY VS. LARRY SHAW, ET AL.

MICHAEL D. LIBERTY LARRY SHAW
MICHAEL D. LIBERTY MARTIN M. EISENBERG

MICHAEL D. LIBERTY’s MOTION to file first amended complaint TENTATIVE RULING:

Plaintiff Michael Liberty’s Motion for Leave to File First Amended Complaint (FAC) is GRANTED. Code Civ. Proc. §§ 473(a)(1); 576. As a general rule, the Court exercises discretion liberally to permit amendments to pleadings, even when sought relatively close to the trial date. This case is 13 months old. Trial is set for 9-9-19. There have been no trial continuances. Although Plaintiff seeks leave to amend relatively late in the case, the evidence before the Court does not demonstrate any prejudice compelling enough to justify denying leave to amend. The Opposition does not argue that granting leave would affect the 9-9-19 trial date. Indeed, the proposed FAC adds no new causes of action; all 9 causes of action were already previously asserted. No depositions have been taken. Both parties are scheduled to be deposed near the time of the 8-13-19 hearing date on this motion, at which time defense counsel will have had a copy of the proposed FAC for over 6 weeks.

The Court has reviewed Defendant’s argument, supported by Mr. Eisenberg’s declaration, regarding Plaintiff’s alleged lack of diligence and resulting prejudice. Opp. at 4-8 (discussing Bus. & Prof. Code § 6147 and Rule 3-300, and the parties’ dispute regarding the contingency fee agreement’s validity/enforceability). The merits of this defense are generally beyond the scope of the Court’s concern on a motion for leave to amend. Kittredge Sports Co. v. Sup. Ct. (1989) 213 Cal.App.3d 1045, 1048. While the allegations of delay and prejudice may have some merit, as stated, the Court finds these arguments insufficient to warrant denying the request for leave.

Plaintiff may file the proposed FAC within 7 days of this Order. The proposed FAC submitted with the moving papers is not deemed filed by virtue of this Order. It must be separately filed with the Clerk’s office.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, Plaintiff shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.