2015-00185656-CU-BC

Blue Waters Transport, Inc. vs. Dan Dewald, Inc.

Nature of Proceeding: Motion to File Second Amended Cross-Complaint

Filed By: McBride, Paul T.

Defendant/Cross-Complainant Dan Dewald dba Dewald Equipment Leasing’s (“Dewald”) motion to file second amended cross-complaint (“SACC”) is ruled upon as follows.

In this action, Plaintiff Blue Waters Transport (“Blue Waters”) alleges that Dewald

leased to it three defective 2009 Freightliner trucks. Dewald filed a cross-complaint for breach of the three lease agreements. Dewald then filed a first amended cross-complaint which added a cause of action for breach of personal guarantee of the three 2009 truck leases.

Dewald seeks leave to file an SACC to add a cause of action for breach of contract with respect to three 2010 Freightliner trucks. Dewald insists that amendment is necessary because Blue Water owed 12 months’ lease payments on all three trucks, and has failed to return the trucks at the lease termination date. According to Dewald, Blue Water missed the lease payment due on August 1, 2016, and has continued to miss payments. Blue Water also did not surrender the trucks at the expiration of the lease term on August 30, 2017. Between August 30, 2016 and the present, Dewald has had numerous conversations with Blue Waters regarding his obligation to come current on the truck leases and return the trucks. At his July 2017 deposition, Blue Water’s owner testified that he will not make payments on the 2010 truck leases until Dewald released the title on the trailers.

Trial is scheduled for August 27, 2018.

Blue Water opposes on the ground that Dewald unreasonably delayed seeking leave and that it will be prejudiced because Blue Water would have to conduct additional discovery on trucks that are unrelated the defective trucks at issue in its complaint.

Although it appears that Dewald may have delayed in seeking leave to amend, this

Court does not conclude that this motion has been delayed so long as to warrant the outright denial of leave to amend. This is particularly true in light of a vast body of case law which holds that the Court’s discretion should be

exercised liberally in favor of the amendment and that denial of leave is rarely justified, even as late as the trial. (See, e.g., Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596.)

Similarly, while the SACC will require additional discovery driving up litigation costs, this is not the type of prejudice which otherwise justifies denial of leave to amend especially since there is adequate time to complete appropriate discovery and file any additional motions. The resulting increase in defense costs is not under California law a legitimate basis on which to deny leave to amend.

The motion is GRANTED.

Dewald may file and serve a second SACC by no later than April 2, 2018, Response to

be filed and served within 30 days thereafter, 35 days if the SACC is served by mail. (Although not required by any statute or rule of court, Dewald is requested to attach a copy of the instant minute order to the SACC to facilitate the filing of the pleading.)