Case Number: BC621786 Hearing Date: January 17, 2018 Dept: 32

Bergman dacey Goldsmith,

Plaintiff,

v.

stacy gordon, et al.,

Defendants.

Case No.: BC621786

Hearing Date: January 17, 2018

[TENTATIVE] order RE:

Motion for leave to file first amended complaint

BACKGROUND

As set forth in the complaint, Plaintiff Bergman Dacey Goldsmith (“Plaintiff”), a law firm, retained Defendant Stacy Gordon (“Gordon”) and his company, Defendant RMI (“RMI”), as their insurance broker to obtain various types of insurance. In 2014, Defendant RMI merged with Defendant Signature Insurance Group, LLC (“SIG”). Plaintiff alleges Defendants engaged in fraud by overcharging Plaintiff through hidden commissions, and issuing a fraudulent indemnity policy.

DISCUSSION

The court may allow, in furtherance of justice, and “upon any terms as may be just, an amendment to any pleading or proceeding in other particulars….” (CCP § 473.) “[D]iscretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.” (Kittredge Sports Co. v. Sup. Ct. (1989) 213 Cal. App. 3d 1045, 1047.) It is generally abuse of discretion to deny leave to amend if the opposing party does not show prejudice. (Ibid.) It is not an abuse of discretion of the court unless there is a “showing that actual unfairness or obvious prejudice has resulted from the allowance of such an amendment”. (Posz v. Burchell (1962) 209 Cal.App.2d 324, 334.) “Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading.” (Ibid.) Absent a showing of prejudice, delay alone is insufficient grounds for denial. (See Higgins v. Del Faro (1981) 123 Cal. App. 3d 558, 564–65.)

A motion to amend a pleading before trial must be accompanied by a separate declaration that must specify (1) the effect of the amendment; (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. (CRC Rule 3.1324(b).)

Plaintiff moves for leave to amend the complaint to add Acrisure of California, LLC, Brakke-Schafnitz Insurance Brokers LLC, Brakke-Schafnitz Insurance Brokers, Inc., and Schafnitz Holdings, Inc. (“Acrisure and Brakke-Schafnitz Entities”) as Defendants to the action. As explained in the declaration of Plaintiff’s counsel, written discovery produced in mid-2017 revealed that the merger between Defendant RMI and SIG apparently included the Acrisure and Brakke-Schafnitz Entities as well. (Parker Decl. ¶ 9.) Counsel proposed a stipulation that would allow for the filing of an amended complaint, but only Gordon and RMI would agree to the stipulation. (Parker Decl. ¶ 12.) After being made aware that SIG would not agree to the stipulation, Plaintiff filed the instant motion. (Ibid.) The Court finds that Counsel’s declaration satisfies the requirements of CRC Rule 3.1324(b) in that it specifies the effect of the amendment, why it is necessary, when the facts giving rise the amendment were discovered, and why the request for amendment was not made earlier.

Defendants RMI and Gordon do not oppose the amending of the complaint. Defendant SIG opposes the motion on the grounds that Plaintiff’s assertion that Acrisure and Brakke-Schafnitz Entities’ participation in the merger was only recently discover is inaccurate, and that Plaintiff’s delay in bringing this motion is unexcused. Even if this is the case, SIG fails to submit a justification for denying the motion. Even if Plaintiff had known about Acrisure and Brakke-Schafnitz Entities’ participation in the merger prior to mid-2017, at most, Plaintiff would be responsible for delay. However, without a showing of prejudice, delay alone is insufficient grounds to deny the motion. Trial is currently set for April 10, 2018. This is enough time for the parties to conduct additional discovery. To the extent that more discovery is required, the trial can also be continued.

Based on the foregoing, the motion is GRANTED.