AUSSIEKER vs GRAHAM, et al.

24CV013995: AUSSIEKER vs GRAHAM, et al. 07/16/2026 Hearing on Motion for Leave to File Second Amended Complaint in Department 16D

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided.

*** NOTICE: EFFECTIVE APRIL 13, 2026, THIS DEPARTMENT HAS MOVED TO THE TANI G. CANTIL-SAKAUYE COURTHOUSE LOCATED AT 500 G. ST. SACRAMENTO, CA. ALL MOTIONS NOTICED FOR DEPARTMENT 53 WILL BE HEARD IN DEPARTMENT 16D OF THE NEW COURTHOUSE. ALL PAPERS FOR THIS DEPARTMENT MUST BE FILED AT THIS NEW LOCATION AND WILL NOT BE ACCEPTED AT THE HALL OF JUSTICE. ALL HEARINGS WILL TAKE PLACE AT THIS NEW LOCATION. PARTIES MAY CONTINUE TO APPEAR REMOTELY IN DEPARTMENT 16D UNLESS SPECIFICALLY ORDERED OTHERWISE. ***

TENTATIVE RULING:

Self-represented Plaintiff Mark Aussieker’s unopposed motion for leave to file a second amended complaint and to reclassify the matter from limited to unlimited is granted.

The Court declines to consider Defendant Adam Chandler’s opposition filed on July 9, 2026, only five Court days before the hearing. CCP § 1005(b) requires all oppositions to be filed and served no later than nine Court days prior to the hearing.

This action arises out of the alleged telemarking calls Javed Graham and Adam Chandler allegedly placed to a telephone number Plaintiff registered on the national Do Not Call Registry. Plaintiff asserts that discovery has revealed the need to name an additional defendant and additional causes of action.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV013995: AUSSIEKER vs GRAHAM, et al. 07/16/2026 Hearing on Motion for Leave to File Second Amended Complaint in Department 16D

“Trial courts are vested with the discretion to allow amendments in the furtherance of justice That Trial courts are to liberally permit such amendments, at any stage of the proceeding, has been established policy in this state resting on the fundamental policy that cases should be decided on the merits.” (Hirsa v Superior Court (1981) 118 Cal.App.3d 486, 488-489.) Judicial policy favors resolution of all disputed matters between the parties in the same lawsuit. Thus, the court's discretion will usually be exercised liberally to permit amendment of the pleadings.

See Nestle v. Santa Monica (1972) 6 Cal.3d 920,939; Mabie v. Hyatt (1998) 61 Cal. App.4th 581, 596. A trial court has discretion to deny a motion for leave to amend where “inexcusable delay and probable prejudice” are shown. (Magpali v. Farmers Group (1998) 48 Cal.App.4th 471, 487-488 [leave to amend made on the eve of trial properly denied in the trial court’s discretion where the new cause of action would have greatly expanded the case after the “trial date was set, the jury [was] about to be impaneled, counsel, the parties, the trial court, and the witnesses [had] blocked the time, and the only way to avoid prejudice to the opposing party is to continue the trial date to allow further discovery ”].)

Here, while the action was filed approximately two years ago on July 12, 2024, no trial date is set. As a result, the defendants will have ample opportunity to conduct any discovery needed to address the second amended complaint and prepare a defense. Even if the Court considered Defendant Chandler’s untimely opposition, nothing in that opposition would persuade the Court to exercise its discretion and refuse to apply the liberal policy of allowing amendments.

Further, the Court would also not consider any argument raised in Defendant Chandler’s untimely opposition regarding the merits of the proposed pleading. Generally, the validity of a proposed amendment is generally not considered in deciding whether to grant leave to amend. (California Casualty General Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 280-281 [disapproved on other grounds in Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390, 407.]) Such challenges to the pleadings are more properly addressed in a demurrer or a motion to strike rather than in an opposition to a motion to amend.

It is axiomatic that “the preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings.” (California Casualty Gen. Ins. Co., supra, 173 Cal.App.3d at 281.) Defendant Chandler is free to challenge the proposed second amended complaint by way of demurrer or other appropriate motion.

No timely opposition to the motion was filed. A party’s failure to oppose a motion is construed as a concession on the merits of the motion. (See D.I. Chadbourne, Inc. v. Superior Court (1964)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV013995: AUSSIEKER vs GRAHAM, et al. 07/16/2026 Hearing on Motion for Leave to File Second Amended Complaint in Department 16D

60 Cal.2d 723, 728, n.4.)

The motion for leave to amend is granted.

No later than July 30, 2026, Plaintiff shall separately file and serve the proposed second amended complaint in the same form as submitted with the motion. The Court will not deem the proposed amended complaint filed and served.

Plaintiff also contends that the new allegations necessitate reclassifying this case to an unlimited civil case. If a party files a motion for reclassification after the time for that party to amend that party’s initial pleading or to respond to a complaint, cross-complaint, or other initial pleading, the court shall grant the motion and enter an order for reclassification only if both the following conditions are satisfied: (1) The case is incorrectly classified. (2) The moving part shows good cause for not seeking reclassification earlier.” (CCP § 403.040(b).) “If a jurisdictionally appropriate verdict may result, (i.e., if such a verdict is not virtually unobtainable) the court should grant the motion to reclassify the case as ‘unlimited.’ Concomitantly, the court may deny the motion only where it appears to a legal certainty that the plaintiff's damages will necessarily be $ 25,000 or less.” (Ytuarte v.

Superior Court (2005) 129 Cal. App. 4th 266, 279.) Notably, even if the Court were to consider Defendant Chandler’s opposition, the opposition did not challenge Plaintiff’s request for reclassification.

Here, it is possible that a jurisdictionally appropriate verdict may result and that Plaintiff had good cause for not seeking reclassification earlier.

The motion to amend reclassification to an unlimited civil case is granted conditioned on Plaintiff paying the reclassification fees as provided in Section 403.060. (CCP § 403.040(c)(1).)

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