Case Name: Zubillaga v. Turkus, et al.
Case No.: 113CV252575
Cross-Complainants Daniel Turkus and Jeanette Turkus, as Trustees of the Daniel Ralph Turkus and Jeanette Louise Turkus Revocable Trust, move for an order granting leave to file a First Amended Cross-Complaint. Cross-Defendants oppose and seek in the alternative a condition that Cross-Defendants be allowed to resume completed depositions.
Cross-Complainants claim they have an easement for ingress and egress. After limited discovery, Cross-Complainants seek leave to amend their Cross-Complaint to include two new causes of action: (1) Quiet title to a Public Easement by Prescription, and (2) Public Nuisance.
- Motion for Leave to Amend
Cross-Complainants argue that the proposed amendments are necessary and in the furtherance of justice because the newly discovered facts suggest that the public owns a prescriptive easement over the road in dispute.
Cross-Complainants argue that leave to amend will not prejudice Cross-Defendants because quiet title actions are not barred by a statute of limitations (Cal. Code Civ. Proc., § 3490). In addition, no trial date has been set and only limited discovery has occurred.
Cross-Defendants argue that the new cause of action is a sham because the evidence does not support a public easement by prescription. However, Cross-Defendants do not say, or provide facts that would suggest, that the public nuisance claim is not a sham.
Cross-Defendants also argue that they would be prejudiced because they would incur fees for filing a motion for summary adjudication and thereby needlessly incur additional attorneys’ fees and costs in defeating claims that have no basis in law or fact. In addition, Cross-Defendants argue that they have taken extensive discovery already, and that the discovery was limited to the original cross-complaint. In the alternative, Cross-Defendants move the court to allow Plaintiff to resume previously completed depositions.
The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading.” (Cal. Code Civ. Proc., § 473(a)(1).) The court’s discretion will usually be exercised liberally to permit amendment of pleadings. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) Courts may deny a leave to amend if the granting of the motion will prejudice the opposing party and where the proposed amendment does not include a meritorious cause of action. (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.) The preferable practice would be to permit the amendment and allow the parties to test the legal sufficiency of the amendment by demurrer, motion for judgment on the pleadings or other appropriate proceedings. (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048 (citing California Casualty Gen. Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 281).) The court has discretion to deny leave to amend where the proposed amendment omits or contradicts harmful facts pleading the original pleading, unless a showing is made of mistake or other sufficient excuse for changing the facts. (Vallejo Develop. Co. v. Beck Develop. Co. (1994) 24 Cal.App.4th 929, 946.) “Ordinarily, a court would be inclined to allow an amendment to cure a mistaken or inadvertent allegation. [Citation] But a court is not required to accept an amendment complaint that is […] [a] sham.” (American Adv. & Sales Co. v. Mid-Western Transport (1984) 152 Cal.App.3d 875, p. 878.)
In Mid-Western Transport, the court denied leave to amend because the proposed amendments contradicted allegations in the earlier pleading. (Ibid. at p. 879.) The plaintiff falsely alleged that it was duly licensed and thus entitled to enforce contract with the defendant. (Ibid. at p. 878.) When the defendant obtained proof that the party was not licensed, that party amended the allegation that the contract was actually owned by a subsidiary, which was licensed. (Ibid. at pp. 878-879.) The court refused to allow leave to amend because the proposed amendments contradicted the earlier pleading and there was no showing that the earlier pleading was based on the result of mistake of inadvertence. (Ibid. at p. 879.)
The proposed amendments are not a sham. Cross-Defendant has not pointed out anything in the proposed amendments that contradict the allegations in the cross-complaint. Cross-Defendant’s main argument is that the evidence obtained in discovery does not support the amendment. This argument is more appropriate on a different motion. (See Kittredge Sports Co., supra, 213 Cal.App.3d at p. 1048.)
Therefore, the motion for leave to amend is GRANTED.
- Motion on Condition for Resumption of Previously Completed Depositions
Cross-Defendants argue that the condition is necessary because they conducted discovery without asking questions pertaining to the new causes of action and that they will be prejudiced if they cannot reopen those depositions. Cross-Complainants do not oppose. The motion for resumption of previously completed depositions is GRANTED.
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