Case Name: Hussein Kaoun, et al. v. Katayon Ghadirian

Case No.: 1-13-CV-249453

I. Motion by defendant/cross-complainant Katayon Ghadirian for leave to amend the cross-complaint

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.)

On November 26, 2013, the Court sustained the demurrer of plaintiffs/cross-defendants Hussein Kaoun and Ali Farnaz to the first five causes of action in the cross-complaint. Shortly before that date, defendant/cross-complainant represented in her declaration that she was injured in a fall, and due to complications with her medication she was unable to amend her pleading. Ghadirian now is represented by counsel and seeks to amend her cross-complaint.

Based on her representations, Ghadirian has not been dilatory in bringing this motion. Moreover, there is no prejudice to Cross-Defendants as there is no trial date and discovery has not been propounded. (See Opposition at p.5:8-9 [explaining that Cross-Defendants will propound discovery after the hearing]; 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, Cross-Defendants’ claim of financial harm is not unduly prejudicial. In any given case where a party seeks leave to amend a pleading, some additional litigation costs may 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. Cross-Defendants’ cite 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, Cross-Defendants will have the opportunity later to attack the validity of the amended pleading, and the argument going to the merits does not preclude leave to amend. (See Kittredge Sports Co. v. Super. Ct. (1989) 213 Cal.App.3d 1045, 1048 [stating that the court will not consider the validity of the proposed amended pleading in deciding whether to grant leave to amend, and that after leave to amend is granted, the opposing party will have the opportunity to attack the validity of the amended pleading].)

In sum, no trial date has been set, discovery has not begun, and there is no prejudice to Cross-Defendants in allowing amendment. There also is no basis for Cross-Defendants’ request for monetary sanctions. Accordingly, Ghadirian’s motion for leave to amend is GRANTED.

II. Motion by plaintiffs/cross-defendants Hussein Kaoun and Ali Farnaz for judgment on the pleadings and to dismiss the cross-complaint

Ghadirian’s request for judicial notice in support of her oppositions 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 ruling on the motion for leave to amend, Cross-Defendants’ motion for judgment on the pleadings as to the cross-complaint and motion to dismiss the cross-complaint are MOOT.