Babayan v. McMurray

(36) Tentative Ruling

Re: Babayan v. McMurray Superior Court Case No. 24CECG03655

Hearing Date: August 27, 2026 (Dept. 501)

Motion: by Plaintiff for Leave to Amend

Tentative Ruling:

To grant the motion. (Code Civ. Proc., § 473, subd. (a)(1).)

Plaintiff is required to file the First Amended Complaint within 10 days from the service of the clerk of the minute order.

Explanation:

Plaintiff seeks leave to allege two additional causes of action for Elder Abuse pursuant to Welfare & Institutions Code section 15610.63 and intentional infliction of emotional distress. Plaintiff further seeks to amend the complaint to add supporting facts to his claims for assault, battery, and negligence. A declaration pursuant to California Rules of Court, rule 3.1324 is filed in support of the motion. A copy of the proposed amended complaint is attached. (Wagner Decl., Ex. A.)

Plaintiff has met the formalities required of a motion to amend the complaint, and has given due notice to all appearing defendants. Motions for leave to amend the pleadings are directed to the sound discretion of the judge. “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); see also Code Civ. Proc., § 576.) Judicial policy favors resolution of cases on the merits, and thus the court’s discretion as to allowing amendments will usually be exercised in favor of permitting amendments. This policy is so strong, that denial of a request to amend is rarely justified, particularly where “the motion to amend is timely made and the granting of the motion will not prejudice the opposing party.” (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.)

Even so, the court has discretion to deny a motion for leave to amend where there has been inexcusable delay in making the motion that prejudices the opposing party, or where a proposed amendment is legally futile. (See Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 759-761 [“When a trial court denies leave to amend, the decision has been upheld on grounds such as the fact that the amendment contained objectionable subject matter or because of the conduct of the moving party or belated presentation of the amendment.”].)

Defendant opposes the motion on several grounds: (1) the declaration supporting the motion fails to comply with California Rules of Court, rule 3.1324; (2) plaintiff cannot split the same primary right between multiple theories of liability; (3) the motion is untimely; 14

(4) the delay in seeking amendment is prejudicial; and (5) the proposed amended complaint fails to state a cause of action for elder abuse and intentional infliction of emotional distress.

California Rules of Court, rule 3.1324

Defendant contends that the declaration filed in support of the motion fails to to provide “[w]hen the facts giving rise to the amended allegations were discovered; and [¶] [t]he reasons why the request for amendment was not made earlier.” (Cal. Rules of Court, rule 3.1324(b)(3)-(4).) Although there is a lack of specific facts in plaintiff’s counsel’s declaration, counsel at least generally asserts that facts giving rise to the amended allegations were not discovered until counsel began preparing for trial, which counsel estimates to be on or about March 24, 2026. (Wagner Decl., ¶ 9, subd. (c)-(d).) There does not appear to be a specificity requirement for the declaration. The court finds that counsel’s declaration at least substantially complies with the rule of court.

Primary Rights

“ ‘The primary right theory is a theory of code pleading that has long been followed in California. It provides that a “cause of action” is comp[o]sed of a “primary right” of the plaintiff, a corresponding “primary duty” of the defendant, and wrongful act by the defendant constituting a breach of that duty. [Citation.] The most salient characteristic of a primary right is that it is indivisible: the violation of a single primary right gives rise to but a single cause of action. [Citation.] A pleading that states the violation of one primary right in two causes of action contravenes the rule against ‘splitting’ a cause of action’ [Citation.]” (Duncan v. Kihagi (2023) 96 Cal.App.5th 703, 709, citations omitted.)

“ ‘The primary right theory has a fairly narrow field of application. It is invoked most often when a plaintiff attempts to divide a primary right and enforce it in two suits. The theory prevents this result by either of two means: (1) if the first suit is still pending when the second is filed, the defendant in the second suit may plead that fact in abatement [citations]; or (2) if the first suit has terminated in a judgment on the merits adverse to the plaintiff, the defendant in the second suit may set up that judgment as a bar under the principles of res judicata. [Citation.]

The latter application of the primary right theory appears to be most common: numerous cases hold that when there is only one primary right an adverse judgment in the first suit is a bar even though the second suit is based on a different theory [citation] or seeks a different remedy.’ [Citation.] ” (Duncan v. Kihagi, supra, 96 Cal.App.5th at p. 709, citations omitted.)

The theory is inapplicable in the circumstances presented here, as plaintiff has not split the primary right giving rise to his claims.

“The manner in which a plaintiff elects to organize his or her claims within the body of the complaint is irrelevant to determining the number of causes of action alleged under the primary right theory. ‘[I]f a plaintiff states several purported causes of action which allege an invasion of the same primary right he has actually stated only one cause of action. On the other hand, if a plaintiff alleges that the defendant's single wrongful act 15

invaded two different primary rights, he has stated two causes of action, and this is so even though the two invasions are pleaded in a single count of the complaint.’ [Citation.] ” (Hindin v. Rust (2004) 118 Cal.App.4th 1247, 1257.) In other words, “ ‘[w]hen a complaint alleges multiple theories of liability or “counts,” the counts “are merely ways of stating the same cause of action differently.” ’ [Citation.]” (Ibid., citations omitted.)1

Here, there is no evidence of a separate action. Defendant concedes that the proposed causes of action are based on the same facts giving rise to the three causes of action raised in the original complaint. Accordingly, all of plaintiff’s causes of action, including the two proposed causes of action, are based on the same alleged invasion of plaintiff’s primary right.

Delay and Prejudice

“[I]t is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.” (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761; see also Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564 [“Where no prejudice is shown to the adverse party, the liberal rule of allowance prevails.”].) “Courts must apply a policy of liberality in permitting amendments at any stage of the proceeding, including during trial, when no prejudice to the opposing party is shown. (Huff v.

Wilkins (2006) 138 Cal.App.4th 732, 746 (Huff).) ‘However, “ ‘even if a good amendment is proposed in proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial.’ ” ’ (Ibid.; Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 488 [“Where the trial date is set, the jury is about to be impaneled, counsel, the parties, the trial court, and the witnesses have blocked the time, and the only way to avoid prejudice to the opposing party is to continue the trial date to allow further discovery, refusal of leave to amend cannot be an abuse of discretion.”].) (P&D Consultants, Inc. v.

City of Carlsbad (2010) 190 Cal.App.4th 1332, 1345 (P&D Consultants).)

Defendant contends that plaintiff’s requested amendment is prejudicial, since it would impose significant burdens, including additional discovery, legal costs, and delays in resolving the case. However, the ordinary burdens a litigant may face are not ordinarily considered prejudice in the context of opposing a motion to for leave to amend. If this were the case, this would serve to defeat every plaintiff’s motion to amend the complaint as it could be said that any amendment could result in additional discovery, legal costs, and delay. Moreover, plaintiff’s proposed amendment does not add any new parties or allege any new factual circumstances that were not already known to all of the parties. Trial has not been set. Therefore, the court does not find that defendants will be sufficiently prejudiced by the proposed amendment so as to preclude plaintiff from amendment.

Further, the court is not inclined to deny plaintiff’s motion for leave solely based on plaintiff’s delay.

1 Neither party cites to any authority explaining the application of the primary right theory when

only one action is involved. The court acknowledges that neither party has cited to this case. Hindin v. Rust (2004) 118 Cal.App.4th 1247 is discussed for the purpose of providing clarity on the primary right theory on this issue only. 16

While neither party provides any authority delineating a clear definition for “unwarranted delay,” it does not appear to apply in the instant case. As distinguished from the case at bench, the plaintiff in Huff moved for an ex parte for an order shortening the time for his motion for leave to amend 3 days before the summary judgment hearing. (Id., at p. 746.) Similarly, in Record v. Reason (1999) 73 Cal.App.4th 472, the moving party moved for leave to amend his complaint to be heard at the same time as the summary judgment motion. (Id., at pp. 486-487.)

In Roemer v. Retail Credit Co. (1975) 44 Cal.App.3d 926, the court affirmed the trial court’s denial of defendants’ request for leave to amend its answer on the basis of unwarranted delay where defendant did not make his request until the day of trial, after the close of his case and just prior to the giving of jury instructions. (Id., at pp. 938-941.) In Miles v. City of Los Angeles (2020) 56 Cal.App.5th 728, the plaintiffs were denied leave to amend since the motion was filed after the trial court indicated its intent to grant summary judgment in favor of defendant city. (Id., at p. 739.)

In P&D Consultants, the trial court did not err in denying plaintiff’s motion for leave to amend, since plaintiff did not seek leave to amend until after the trial readiness conference. (Id. at p. 1345.) The commonality between each of these cases discussing unwarranted delay is that the plaintiff did not move for leave until a motion for judgment was filed and/or trial was set, which is not the case here.

Failure to State a Claim

Ordinarily, the court does not consider the validity of the proposed amended pleading in deciding whether to grant leave to amend. Generally, “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.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048; Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 760 [“the better course of action would [be] to allow [plaintiff] to amend the complaint and then let the parties test its legal sufficiency in other appropriate proceedings.”].)

Accordingly, the motion for leave to amend is granted.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: KCK on 08/26/26. (Judge’s initials) (Date)

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