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Plaintiffs Stephanie Drewsen and Ron Drewsen bring this Motion for Leave to File a Second Amended Complaint (“SAC”). The proposed SAC seeks to add claims for battery against all defendants and for fraud against Defendant Stanford Hospital and Clinics (“Stanford”) by and through its agents. The battery claim in Plaintiffs’ Proposed SAC alleges that Plaintiff Stephanie Drewsen was not told that unsupervised residents would be performing her surgery and that the chief surgeon, Dr. Lowenstein, could not have performed the surgery and subsequently lied about who actually performed the surgery to cover up the fact that he left two unsupervised residents in charge of the surgery. Plaintiffs’ fraud claim alleges similar facts and contends that Dr. Lowenstein and Stanford fraudulently misrepresented who performed the surgery.

In the moving papers, Plaintiffs argue that (1) motions for leave to amend are routinely granted and there is a liberal policy towards allowing leave to amend pursuant to established California law; (2) the claim for battery is properly pled in the Proposed SAC; (3) the fraud claim against Stanford by and through its agents is properly pled; and (4) the new claims in the SAC are not barred by the statute of limitations. The moving papers also include the Declaration of Marvin Lewis which states that in January of 2017, a consultant revealed that no surgeon with the level of experience of Dr. Lowenstein could have performed the surgery and it had to have been performed by unsupervised residents. The Lewis Declaration also states that the declarant had medical issues in the Spring and Summer of 2017 which caused delay in seeking leave to amend the complaint once this information became available through the consultant.

In their opposition papers, Defendants argue that the request for leave to amend should be denied because: (1) the claims for fraud and battery as well as the redrafted claim for medical negligence in the Proposed SAC is a sham because many of the newly alleged “facts” are completely false and are directly contradicted by testimony under penalty of perjury; (2) Plaintiffs unreasonably and inexcusably delayed in filing their motion to amend because Plaintiffs alleged in their 2014 NOI that the Stanford residents did the surgery and based upon Dr. Toton from 2016 and Dr. Corn from early 2017, Plaintiffs had knowledge of their claim that Dr. Lowenstein did not perform the operation; (3) Defendants will be prejudiced by allowing Plaintiffs to amend the Complaint because the surgery was almost four years ago and witnesses have left Stanford and trial will be set sometime between March 2018 and July 2018, thus precluding Defendants the opportunity to complete discovery and file motions for summary judgment; and (4) the fraud and battery claims are time-barred and thus it would be futile to attempt to amend to add these new claims.

In reply to the opposition, Plaintiffs argue that any delay in seeking leave to amend is excusable because of counsel’s medical condition and does not prejudice the defendants as no expert depositions have commenced. Additionally, Plaintiffs argue that the fraud claim in not time-barred because Plaintiff did not discover the fraud until 2017 and that at the time of the 2014 NOI letter, Plaintiffs had no facts to allege a claim for fraud. Plaintiffs further argue that they have pled delayed discovery which would preclude the statute of limitations defense and that the medical negligence claim has not been redrawn as a fraud claim and relates back to the filing of the original Complaint.

Motions for leave to amend are directed to the discretion of the court. “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading . . .” (Code Civ. Proc., §473, subd. (a)(1).) The law generally favors amendments on the basis that cases should include all disputed matters between parties and be decided on their merits. However, if the party seeking amendment has been dilatory and the delay has prejudiced the opposing party, the judge has discretion to deny leave to amend. (See Hirsa v. Sup. Ct. (1981) 118 Cal.App.3d 486, 490.)

“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. Super. Ct. (1959) 172 Cal.App.2d 527, 530.)

“[T]he failure of a proposed amendment to state facts sufficient to constitute a cause of action or defense may support an order denying a motion to amend. [Citation.] That rule would find its most appropriate application … in cases in which the insufficiency of the proposed amendment is established by controlling precedent and where the insufficiency could not be cured by further appropriate amendment.” (California Casualty Gen. Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 280–81 (disapproved on other grounds in Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390, 407, fn. 11.))

“Where no prejudice is shown to the adverse party, the liberal rule of allowance prevails.” (Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564; see also Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487.)

Applying these principles to the immediate case and recognizing California’s liberal policy in allowing amendments to pleadings, the Court will exercise its discretion and allow Plaintiffs the opportunity to file their SAC. While the Court has some concerns about the delay in seeking leave to amend their complaint once their consultant concluded that the surgery was not performed by Dr. Lowenstein, the medical condition of lead counsel provides some explanation for the delay in amending. The Court further notes that trial has not been set and Defendants concerns about the timing of dispositive motions can be addressed at the trial setting conference thus mitigating any prejudice to Defendants. As to the sham and/or futility of the newly included causes of action, Defendants will have the opportunity to file appropriate dispositive motions, but it is not so clear from the new allegations in the Proposed SAC, that the Court should summarily deny Plaintiffs the opportunity to amend. Accordingly, Plaintiffs Motion for Leave to File the Second Amended Complaint is GRANTED.