Case Number: BC498442    Hearing Date: July 25, 2014    Dept: 34

Moving Party: Defendant and cross-complainant Roy Mayhugh (“Mayhugh”)

Resp. Party: Plaintiff and cross-defendant SKDTV Inc. (“SKDTV”)

Mayhugh’s motion for leave to amend is DENIED, without prejudice to Mayhugh re-submitting the motion with a declaration in compliance with CRC rule 3.1324.

PRELIMINARY COMMENTS:

This motion for leave to amend the cross-complaint is being filed 1½ years after the complaint was filed, and more than 1 year after the filing of the cross-complaint. As indicated below, it is being denied without prejudice. However, should Defendant Mayhugh decide to resubmit his motion, he should be aware that the Court is not inclined to continue the trial date on this matter.

Further, the Court wishes to remind both parties that they must comply with the Court’s Trial and FSC orders, which require, inter alia, counsel to meet and confer in person and submit various joint documents prior to the FSC. (See Dept. 34 Orders, ¶ VIII, available in Dept. 34 or online at http://www.lasuperiorcourt.org/courtroominformation/ui/resultpopup.aspx?value=LAM/34.)

BACKGROUND:

SKDTV commenced this action on 12/31/12 against defendants for: (1) fraud; (2) breach of the covenant of good faith and fair dealing; (3) breach of contract; and (4) conversion.

Mayhugh filed a cross-complaint against SKDTV on 6/18/13 for insufficient (NSF) check.

ANALYSIS:

Mayhugh seeks leave to amend to add six new causes of action to his cross-complaint.

Procedural analysis

Under California Rules of Court rule 3.1324(a):

(a) A motion to amend a pleading before trial must: [¶] (1) Include a copy of the proposed amendment or amended pleading, which must be 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.

Subdivision (b) of rule 3.1324 requires the motion be accompanied by a separate declaration, specifying: (1) the amendment’s effect, (2) why the amendment is necessary and proper, (3) when the facts giving rise to the amended allegations were discovered, and (4) the reasons why the request for amendment was not made earlier.

Mayhugh has submitted a proposed first amended cross-complaint (“FACC”). Mayhugh states that the allegations in the original cross-complaint have been deleted in their entirety and replaced with the new allegations in the FACC. (See Motion, p. 5:20-21.)

Mayhugh provides a declaration. The declaration describes the amendment’s effect. (See Weeks Decl., ¶¶ 4-5.) The declaration states that the amendment is needed to assert “traditional collection causes of action.” (Id., ¶ 5.) The declaration fails to state when the facts giving rise to the amendment were discovered or why the request was not made earlier.

Therefore, the motion is not procedurally proper and may be denied for this reason alone.

Substantive analysis

California Code of Civil Procedure section 473, subd. (a)(1) states: “The court may . . . , in its discretion, . . . allow, upon any terms as may be just, an amendment to any pleading or proceeding.” Although granting the motion is entirely within the Court’s discretion, denial is rarely justified:

If 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. Sup. Ct. (1959) 172 Cal.App.2d 527, 530.)

A court can deny leave to amend after long, inexcusable delay, where there is cognizable prejudice, such as discovery needed, trial delay, critical evidence lost, or added preparation expense. (Solit v. Tokai Bank (1999) 68 Cal.App.4th 1435, 1448; Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761; Green v. Rancho Santa Margarita Mortgage Co. (1994) 28 Cal.App.4th 686, 692; Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487.) Some courts have found that unreasonable delay in making a motion to amend a complaint alone is sufficient grounds to exercise court discretion to deny leave to amend, even absent any prejudice. (See Emerald Bay Community Assn. v. Golden Eagle Ins. Corp. (2005) 130 Cal.App.4th 1078, 1097; Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 613; Roemer v. Retail Credit Co. (1975) 44 Cal.App.3d 926, 939 940.)

Because Mayhugh fails to provide a declaration in compliance with rule 3.1324, it cannot be determined whether he unreasonably delayed in seeking leave to amend. This action has been pending since December 2012 and the trial is just over two months away. It is unclear if allowing leave to amend will require more discovery or further delay the conclusion of this action.

Accordingly, Mayhugh’s motion for leave to amend is DENIED, without prejudice to Mayhugh re-submitting the motion with a declaration in compliance with rule 3.1324.