2014-00169700-CU-BT

Joseph Cortez vs. McClatchy Newspapers, Inc.

Nature of Proceeding: Motion to File Third Amended Complaint

Filed By: Talley, Stuart C.

Plaintiffs’ motion for leave to file third amended complaint is DENIED without prejudice, as follows.

First, this motion fails to comply with the mandatory provisions of CRC Rule 3.1324(a)

(2) and (3) since the moving papers nowhere state what allegations are proposed to

be deleted and/or added nor does it identify the locations of such changes.

Second, this moving papers do not include a declaration which complies with the mandatory provisions of CRC Rule 3.1324(b)(1)-(4).

Third, the court notes that defendant filed a motion for summary judgment/adjudication on 2/14/2018 and it is currently set to be heard on 4/30/2018. Although it may be true that amendments to pleadings are to be liberally granted, California case law indicates that a plaintiff may not amend the complaint where, as here, a defendant’s motion for summary judgment/adjudication is pending. (See, e.g., Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1280; Melican v. Regents of Univ. of California (2007) 151 Cal.App.4th 168, 175-176; Van v. Target Corp. (2007) 155 Cal.App.4th 1375, 1387, fn. 2 [citing authorities].)

While this rule has an exception that permits amendments designed merely to repair a legally deficient pleading which is subject to a motion for judgment on the pleadings ( Id.), this exception is not applicable to the present case because plaintiffs here are not seeking to cure any technical defects in their complaint but rather they are by their own admission seeking to ‘narrow and clarify the issues in the case.’

For all these reasons, the present motion must be and hereby is denied albeit without prejudice to re-filing after resolution of the pending motion for summary judgment/adjudication.