2017-00220721-CU-BC

Nolan Del Campo, Esq. vs. Lesley Pueyo

Nature of Proceeding: Motion to File Amended Complaint

Filed By: Del Campo, Nolan

Plaintiff Nolan Del Campo, Esq.’s motion for leave to file a First Amended Complaint is GRANTED.

This action arises from an alleged oral agreement between the parties for Plaintiff to provide legal services to Defendant in connection with a marital settlement agreement. Plaintiff alleges Defendant breached that oral contract and seeks damages based thereon. Plaintiff now seeks leave to file a FAC to amend his allegations regarding the amount of damages in the complaint and the prayer. Specifically, as the contingency fee agreement was never put into writing, Plaintiff seeks to amend the complaint and prayer pursuant to California Business and Professions Code sections 6147 and 6148 to seek his reasonable fees, rather than damages pursuant to the alleged terms of the oral contract.

In opposition, defendant contends specifying damages makes no difference and no amendment is needed because the Court can award Plaintiff whatever damages he can prove at trial. Abstractly, this is true. Code of Civil Procedure section 469 provides that variance between the allegation in a pleading and the proof shall not be deemed material, unless it has actually misled the adverse party to his or her prejudice in maintaining his or her action or defense upon the merits. If it appears that a party has been so misled, the Court may order the pleading to be amended, upon such terms as may be just. Nonetheless, even though Plaintiff may not ultimately be awarded the specific amount of damages claimed in his complaint, that is not a reason to deny leave to amend.

Further, defendant also contends the proposed amended complaint incorporates by reference exhibits from the original complaint, rather than attaching the exhibits themselves, which is not permitted. While this may have been an error or oversight on Plaintiff’s part, defendant has not cited to any legal authority indicating this constitutes a reason to deny leave to amend.

Rather, it is well established that California courts have a policy of great liberality in allowing amendments at any stage of the proceeding so as to dispose of cases upon their substantial merits where the authorization does not prejudice the substantial rights of others. (Board of Trustees v. Sup. Ct. (2007) 149 Cal.App.4th 1154, 1163.) Moreover, Section 473 of the Code of Civil Procedure authorizes the trial court, in its discretion, to allow amendments in furtherance of justice. The policy of great liberality in permitting amendments at any stage of the proceeding has been declared by our courts. (Klopstock v. Sup. Ct. (1941) 17 Cal.2d 13, 19-20.) However, courts should not permit an amendment “where it would not serve any useful purpose.” (Maple Properties v. Harris (1984) 158 Cal.App.3d 997, 1012.)

Pursuant to the policy of great liberality in permitting amendments, the Court finds the amendments are in furtherance of justice and Defendant will not be prejudiced by the filing of the FAC. No trial date has been set in this matter. Plaintiff’s motion is
GRANTED.

Plaintiff to file and serve the FAC no later than October 29, 2018. Although not required by Court rule or statute, Plaintiff is directed to present a copy of this order when the FAC is presented for filing. The amended complaint shall attach the exhibits referred to; the Court will not deem exhibits from prior pleadings incorporated by reference.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.

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