Case Name: George Fiegl v. Christopher Ott

Case No.: 1-14-CV-260225

Motion for judgment on the pleadings and motion to strike by plaintiff George Fiegl, and motion for leave to file a First Amended Verified Answer by defendant Christopher Ott

1. Motion to Strike

Plaintiff George Fiegl’s (“Fiegl”) motion to strike the First Amended Verified Answer filed on March 28, 2014, is GRANTED. (See Code Civ. Proc., § 436, subd. (b) [permitting the Court to strike any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court].) Defendant Christopher Ott (“Ott”) represents that he does not oppose the motion as he now seeks leave to file the same First Amended Verified Answer.

2. Motion for Leave to Amend

Ott’s motion for leave to file an amended answer is GRANTED. Based on the ruling above regarding the First Amended Verified Answer, Ott shall file his proposed amended answer as the Second Amended Verified Answer. As a general rule, courts liberally allow amendments. (See Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 939.) Indeed, “[i]f the 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 and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” (Morgan v. Super. Ct. (1959) 172 Cal.App.2d 527, 530.)

No trial date has been set, discovery has not begun, and there is no prejudice to Fiegl in allowing amendment. (Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564 [“Where no prejudice is shown to the adverse party, the liberal rule of allowance prevails.”]; see also Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487.) Additionally, Fiegl’s claim of financial harm is not unduly prejudicial. In any given case where a party seeks leave to amend a pleading additional litigation costs will result. If the mere possibility of incurring additional litigation expenses could be a basis for finding prejudice, the liberal policy in California of permitting amendments to pleadings would be seriously undermined. Fiegl cites no legal authority holding that a motion for leave to amend a pleading could be properly denied simply because the non-moving party might subsequently incur costs that are normal incidents of litigation. (See Magpali, supra, 48 Cal.App.4th at pp. 486-88 [there must be actual prejudice to the opposing party].)

Finally, Fiegl contends that Ott’s motion is defective because it fails to comply with California Rules of Court, rule 3.1324(a), which requires that a motion to amend must be accompanied by a declaration that: (1) includes a copy of the proposed amendment or amended pleading serially numbered to differentiate it from previous pleadings or amendments; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. Although Ott did not precisely comply with the provisions of California Rules of Court, rule 3.1324(a), Fiegl’s argument does not compel denial of the motion since the proposed First Amended Verified Answer attached to the declaration accompanying this motion is the same as the improperly filed First Amended Verified Answer that was the subject of the motion to strike.

3. Motion for Judgment on the Pleadings

Fiegl’s request for judicial notice is DENIED. (See Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 [information subject to judicial notice must be relevant to the issue at hand].)

In light of the Court’s rulings, Fiegl’s motion for judgment on the pleadings as to the Verified Answer is MOOT.