2016-00192929-CU-PA

Dillion Fassett vs. Daniel Vasquez

Nature of Proceeding: Motion to File Amendment to Answer

Filed By: Capabianco, Jennifer J.

Defendants Daniel Vasquez and Enterprise Rent-A-Car Company of Sacramento, LLC’s Motion to File Amendment to Answer to plaintiff’s unverified complaint is unopposed and is granted, insofar as defendants may file an Amended Answer including the new affirmative defense rather than file an “Amendment to Answer.”

Plaintiff alleges that he suffered injuries when he was hit by defendant’s vehicle while riding a bicycle. Defendant seeks to add a 16th Affirmative Defense stating that he acted with reasonable care in the face of a sudden emergency at the time of the accident. The original Answer was filed on April 11, 2016. The trial date is May 7, 2018.

Code of Civil Procedure section 473 grants the trial court broad discretion to allow an amendment to any pleading. Code of Civil Procedure section 473 states, in relevant part:

(a) (1) The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time of answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any

terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. CCP 473

“Trial courts are vested with the discretion to allow amendments in the furtherance of justice… That Trial courts are to liberally permit such amendments, at any stage of the proceeding, has been established policy in this state…resting on the fundamental policy that cases should be decided on the merits.” Hirsa v Superior Court (1981) 118 Cal.App.3d 486, 488-489.

Judicial policy favors resolution of all disputed matters between the parties in the same lawsuit. Thus, the court’s discretion will usually be exercised liberally to permit amendment of the pleadings. See Nestle v. Santa Monica (1972) 6 Cal.3d 920,939; Mabie v Hyatt (1998) 61 Cal. App.4th 581, 596 (citing text). Howard v. County of San Diego (2010)184 Cal.App.4th 1422, 1428.” California Civil Procedure Before Trial (2012, Rutter) § 6:638 – 6:339. Courts apply the policy of great liberality in permitting amendments to the complaint “at any stage of the proceedings, up to and including trial” absent prejudice to the adverse party. Atkinson v Elk Corp. (2003) 109 Cal.App.4 th 739, 761.

Defendant shall file an Amended Answer including the new affirmative defense on or before March 9, 2018.