Delay and Prejudice Were Key Factors to Reversal of the Amendment Grant.
California litigation practitioners know that pleading amendments are generally liberally granted, although that liberality gets tightened when the requests are made closer to or during trial. The next case is one where an amendment grant four days into a jury trial was reversed as an abuse of discretion.
Duchrow v. Forrest, Case No. B233736 (2d Dist., Div. 1 Apr. 30, 2013) (published) involved an attorney’s lawsuit against an ex-client for recovery of about $45,000 under a certain specified provision of the parties’ retention agreement. Then, four days into a jury trial, attorney sought to amend the complaint according to proof, seeking a total of $329,111.95 in fees and costs based on a different retainer position and a different theory of recovery. The motion to amend was granted, with the jury awarding attorney $140,056.95, obviously crediting the amendment to some extent. Client appealed, arguing that the trial court abused its discretion by permitting the amendment.
That argument was a winner in a 3-0 decision authored by Presiding Justice Mallano.
The appellate court found there was no real good excuse why the amendment could not have been requested earlier. Just as salient, ex-client suffered real prejudice from the amendment: client had to meet much different claims, had no ability to obtain discovery on the different claims (especially about the reasonableness of a much larger fee request), and had no ability to perform legal research on the validity of the retainer provision being relied upon in the amendment. Amendment grant reversed.