Filed 8/14/26 Kumar v. Waecker CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
DEVINDER KUMAR, B349001
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 22STCV34405)
MARK WAECKER et al.,
Defendants and
Respondents.
APPEAL from an order of the Superior Court of Los
Angeles County, Jon R. Takasugi, Judge. Reversed.
Law Offices of Jason A. Pollack and Jason A. Pollack for
Plaintiff and Appellant.
Richard D. Rome for Defendants and Respondents.
******
A doctor sued the attorney who represented his patient in a
personal injury action, seeking to recover for the medical services
he rendered to the patient pursuant to a lien on the settlement
proceeds in the personal injury action. After litigating the merits
of the case for over two years, the attorney moved for summary
judgment, arguing not only that the undisputed facts warranted
judgment in his favor on the merits, but also that the doctor
individually lacked standing to bring the claims because he
treated and billed the patient exclusively through his medical
corporation. The doctor opposed the summary judgment motion
and filed a motion to amend the complaint to add the medical
corporation as a plaintiff, and add a cause of action for conversion
arising out of the same underlying facts. The trial court denied
the motion to amend and granted summary judgment in favor of
the attorney, finding there were triable issues of fact on the
merits but that the doctor as an individual lacked standing to sue
on behalf of his medical corporation.
We agree the doctor lacked standing to sue thereby
justifying the trial court’s order granting summary judgment and
the entry of judgment against the doctor. But the doctor should
have been permitted (either before or after granting summary
judgment) to amend the complaint because the proposed
amendments were not prejudicial to the attorney’s case. We
reverse the order denying leave to amend the complaint and
affirm the judgment against the doctor in his individual capacity.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. The collision and personal injury action
In July 2020, Alyssa Vernon was injured in an automobile
accident. She retained defendants Mark Waecker and his
professional corporation Mark Waecker APC (collectively,
Waecker) to represent her in a personal injury action against the
driver of the other vehicle.
2
At the time of the accident, Vernon had been a patient of
plaintiff Dr. Devinder Kumar for many years. Following the
accident, she continued seeing Dr. Kumar for pain management.
Dr. Kumar treated Vernon through his medical corporation
Devinder Kumar, M.D., Inc., which does business as “Ultimate
Pain Management.”
B. The lien
In September 2020, Dr. Kumar sent Waecker a document
titled “Personal Injury Lien,” which provided for “the above
provider” to be paid for the medical services rendered to Vernon
“from any settlement judgment or verdict” in the personal injury
action (“the lien”). The lien is on letterhead listing “Ultimate
Pain Management” and “Devinder S. Kumar MD” at the top. It
contains signature lines for both Waecker and Vernon.
Waecker signed and returned the lien to Dr. Kumar’s office
in September 2020. However, Vernon subsequently told Waecker
that she preferred Dr. Kumar to continue billing her medical
insurance instead of placing a lien on her recovery in the personal
injury action.
C. The settlement
Based on Vernon’s preference, Waecker negotiated a
settlement in the personal injury action without relying on any
billing records from Dr. Kumar’s office. In April 2021, the
personal injury action settled for $100,000.
Approximately two months later, Dr. Kumar sent Waecker
a version of the lien purportedly signed by Vernon and requested
that Waecker pay Vernon’s medical bills totaling $41,500 from
the settlement proceeds. Dr. Kumar also provided claim forms
detailing Vernon’s treatment, each of which lists “Devinder
Kumar, MD Inc.” as the “billing provider.”
3
Waecker reviewed the lien with Vernon, who disputed the
authenticity of the signature and maintained that she never
granted Dr. Kumar a lien on her settlement proceeds.
Accordingly, Waecker responded, “We do not have a signed lien
and therefore, our relationship does not require me to pay you for
your medical services.”
II. Procedural History
A. The complaint
On October 26, 2022, Dr. Kumar filed a complaint against
Waecker asserting causes of action for breach of contract, fraud,
breach of fiduciary duty, constructive trust, declaratory relief,
and injunctive relief. Each claim was based on the allegations
that Waecker failed to pay Dr. Kumar the value of Vernon’s
medical services in contravention of the lien. The first paragraph
of the complaint defines the plaintiff, “Dr. Devinder Kumar, MD,”
as “an individual[] and Doctor” who “brings this action in his
professional capacity.”
B. Discovery
Dr. Kumar provided Waecker with copies of Vernon’s
medical bills and records on July 21, 2023. On January 21,
2025—less than a month before the discovery cut-off—Waecker
noticed Dr. Kumar’s deposition. The deposition took place on
February 20, 2025, but Dr. Kumar’s counsel terminated it early
to seek a protective order after objecting to the questioning of
Waecker’s attorney. Waecker then filed a motion in limine
seeking to exclude testimony from Dr. Kumar on several topics
that Waecker did not have an opportunity to ask Dr. Kumar
about during his deposition. He later withdrew that motion
without prejudice.
4
The court held a final status conference on March 6, 2025,
and set a non-jury trial date of July 21, 2025.
C. The summary judgment motions
On March 21, 2025 and March 25, 2025, respectively,
Waecker and Dr. Kumar filed competing motions for summary
judgment. Both parties argued that the undisputed facts entitled
them to judgment as a matter of law. Waecker also argued that
Dr. Kumar lacked standing to pursue the claims individually
because the medical bills were issued by Dr. Kumar’s medical
corporation, Devinder Kumar, M.D., Inc.
D. The motion for leave to amend the complaint
On April 29, 2025, Dr. Kumar filed a motion for leave to
amend his complaint. He sought to make two substantive
amendments: (1) to change the plaintiff from “Dr. Devinder
Kumar MD” to “Devinder Kumar, M.D., Inc., A Business Entity,
and Devinder S. Kumar, A Medical Doctor, Individually” and
“[a]mend Paragraph 1” with new proposed language defining the
plaintiff accordingly; and (2) to add a cause of action for
conversion based on Waecker “taking possession of the full
settlement proceeds without withholding the amount sufficient to
pay the [p]laintiffs’ [l]ien, preventing [p]laintiff from having the
ability to collect the lien from settlement proceeds, and refusing
to pay or negotiate the lien after demand by the [p]laintiff.” He
included a declaration from his attorney explaining that the
name change amendment “was not made earlier as it was
believed that such amendment was unnecessary” until
“[d]efendants’ filing a Motion for Summary Adjudication
challenging the [p]laintiffs’ name,” and that “[d]uring the course
of researching the law on this case,” his attorney learned the
facts “already . . . alleged” supported a claim for conversion. He
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also attached a proposed first amended complaint, which
included the changes set forth above.
In opposition, Waecker argued that Dr. Kumar failed to
comply with California Rules of Court, rule 3.1324’s (Rule 3.1324)
requirements that the motion identify the amendments “by page,
paragraph, and line number” and that the supporting declaration
specify “when the facts giving rise to the amended allegations
were discovered or the reasons why the request was not made
earlier.” (Underscoring omitted.) Waecker also argued that Dr.
Kumar’s delay in seeking amendment was prejudicial because
the case was on the eve of trial, and the proposed amendments
“would require [d]efendants to conduct discovery and bring a new
summary judgment motion.” The only specific additional
discovery Waecker identified was the categories of information he
did not get the chance to depose Dr. Kumar on “since [p]laintiff’s
counsel improperly terminated Dr. Kumar’s deposition.”
E. The trial court’s ruling on the motion for leave
to amend the complaint
At the May 23, 2025 hearing on the motion for leave to
amend, the trial court noted that it was “a very close call” and
asked Waecker “to talk about prejudice to your client, if any.”
Waecker responded that it was “extremely prejudicial” because
he would “need to take a deposition to ask Dr. Kumar to explain
that situation to understand who is the proper plaintiffs, if both
or maybe the corporation.”
That day, the trial court denied Dr. Kumar’s motion for
leave to amend his complaint, reasoning that (1) Dr. Kumar’s
motion failed to comply with Rule 3.1324’s requirements; (2) Dr.
Kumar unjustifiably delayed bringing the motion; and (3) leave to
amend would “severely prejudice” Waecker because “[a]dding a
6
new claim and a new [p]laintiff would require [d]efendants to
conduct discovery and bring a new summary judgment motion.”
F. The trial court’s ruling on the motions for
summary judgment
After holding a hearing on both parties’ motions for
summary judgment on June 10, 2025, the trial court granted
summary judgment in favor of Waecker on June 11, 2025. The
trial court analyzed the evidence both parties submitted and
found “triable issues as to the substance of [p]laintiff’s claims,”
but “no evidence to support a reasonable inference that [p]laintiff
has standing, as an individual, to pursue claims on behalf of a
Devinder Kumar, M.D., Inc., a corporate entity.”
The trial court also reiterated its May 23, 2025 ruling that
denial of leave to amend was proper because “[p]laintiff’s delay in
seeking to amend the named [p]laintiff in this action was
unreasonable, especially considering the 7/21/2025 trial date,
discovery closed 2/17/2025, and [p]laintiff walked out and ended
his deposition when asked about how much he accepts on medical
lien settlements.”
G. The related complaint
On June 10, 2025, “Devinder Kumar, M.D., Inc.” filed a
complaint against Waecker in Case Number 25STCV16731,
asserting causes of action for breach of contract, fraud, breach of
fiduciary duty, constructive trust, and conversion based on the
same facts underlying this action. The trial court found that case
to be related to the present one on July 21, 2025.
H. The motions for reconsideration
Dr. Kumar moved for reconsideration of the trial court’s
order granting summary judgment on June 13, 2025, and for
reconsideration of the trial court’s order denying leave to amend
7
on June 17, 2025. He argued the trial court’s rulings rested on
an untrue and un-briefed premise—namely, “that [p]laintiff
walked out and ended his deposition when asked about how
much he accepts on medical liens.” The trial court held a
combined hearing and denied Dr. Kumar’s motions for
reconsideration on August 13, 2025, clarifying that “both rulings
would have been the same without the information (true or
untrue) about [p]laintiff’s conduct at the deposition,” which was
not a “determinative factor” and amounted to “purely the
equivalent of dicta.”
I. The judgment and appeal
The trial court entered judgment in favor of Waecker on
August 13, 2025, and Dr. Kumar filed a notice of appeal the same
day.
DISCUSSION
I. The Trial Court Properly Granted the Summary
Judgment Motion Against Dr. Kumar Based on Lack of
Standing
We review a trial court’s order granting summary judgment
de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,
860.) A trial court properly grants summary judgment if the
moving party can establish the action has “no merit” and he is
“entitled to a judgment as a matter of law.” (Code Civ. Proc., §
437c, subds. (a), (c).) A defendant is entitled to summary
judgment if the undisputed facts establish “that there is a
complete defense to the cause of action.” (Id., subd. (p)(2).) One
such defense is lack of standing. (Sherwyn v. Department of
Social Services (1985) 173 Cal.App.3d 52, 58 [“‘It is elementary
that a plaintiff who lacks standing cannot state a valid cause of
action’”].) To have standing, a plaintiff must be the real party in
8
interest—that is, the party who has been injured by the
defendant’s conduct. (Martin v. Bridgeport Community Assn.,
Inc. (2009) 173 Cal.App.4th 1024, 1031-1032; Code Civ. Proc., §
367.) Generally, where a corporation’s interests are harmed, it is
the corporation who has standing to sue; “‘a shareholder may not
recover individually for injury to the corporation.’” (Hilliard v.
Harbour (2017) 12 Cal.App.5th 1006, 1013.)
Here, it is undisputed that Dr. Kumar treated Vernon
solely through his medical corporation Devinder Kumar, M.D.,
Inc. All of the bills he submitted list “Devinder Kumar, M.D.,
Inc.” as the “billing provider,” and the lien underlying each of Dr.
Kumar’s claims is on letterhead for “Ultimate Pain
Management,” which is the fictitious name under which Devinder
Kumar, M.D., Inc. does business. Accordingly, it is Devinder
Kumar, M.D., Inc. who has standing to enforce the lien and
recover for the services rendered, not Dr. Kumar individually.
The trial court properly granted summary judgment against Dr.
Kumar on this basis.
Dr. Kumar offers three arguments in support of his claim
that the trial court erred in granting summary judgment.
First, Dr. Kumar argues that because the lien’s letterhead
lists “Devinder S. Kumar MD” under “Ultimate Pain
Management,” there is a triable issue of fact as to whether he
individually has standing to enforce the lien, and the trial court’s
conclusion that he did not was a result of “improperly weigh[ing
the] evidence.” This argument lacks merit. It is undisputed that
Dr. Kumar’s name is listed under “Ultimate Pain Management”
on the lien, but it is also undisputed that he was the only doctor
who provided care at Ultimate Pain Management. The only
reasonable conclusion supported by the evidence is that Dr.
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Kumar treated and billed Vernon through his medical
corporation, and it is therefore the medical corporation who has
standing to recover for the services rendered.
Second, and for the first time in his reply brief, Dr. Kumar
raises the issue of judicial estoppel. He argues that because
Waecker filed a demurrer in the subsequent, separate action
brought by Devinder Kumar, M.D., Inc., arguing for application
of res judicata based on the outcome of the present action and the
premise that both actions involve “the same parties,” Waecker is
judicially estopped from arguing Dr. Kumar lacked standing
here. We need not consider this argument since Dr. Kumar
raised it for the first time in his reply brief. (United Grand Corp.
v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 158.) In
any event, the argument lacks merit because judicial estoppel
“prevents a party from asserting a position in a judicial
proceeding that is contrary or inconsistent with a position
previously asserted in a prior proceeding” (International Engine
Parts, Inc. v. Feddersen & Co. (1998) 64 Cal.App.4th 345, 350,
italics added)—not to invalidate a trial court’s ruling based on a
position taken in a subsequent lawsuit.1
1 Dr. Kumar requests that we take judicial notice of several
documents from case number 25STCV16731—the lawsuit filed
against Waecker by Devinder Kumar, M.D., Inc. Because the
complaint and order finding that case to be related to this one are
already contained in the clerk’s transcript, we deny the request
as to the first two exhibits as duplicative. (See Steshenko v.
Board of Trustees of Foothill-De Anza Community College Dist.
(2025) 112 Cal.App.5th 1300, 1310.) The request, as it relates to
the remaining documents, is denied because they have no bearing
on our review of the trial court’s orders. (See The Retail Property
10
Third and finally, Dr. Kumar argues that by referencing
Dr. Kumar “walking out of his deposition” in the order granting
summary judgment, the trial court’s order amounts to an
improper terminating discovery sanction. However, the trial
court clarified in its order on the motion for reconsideration that
it “did not grant summary judgment in reliance on [this]
comment.” Moreover, because our review is de novo and there is
an independent legal basis justifying the trial court’s order, the
trial court’s comments are irrelevant to our analysis.
II. The Trial Court Abused Its Discretion by Denying
Leave to Amend
Although the trial court properly concluded Dr. Kumar
lacked standing, it abused its discretion by denying leave to
amend the complaint.2
A. Legal standard
“The court may, in furtherance of justice, and on any terms
as may be proper, allow a party to amend any pleading or
Trust v. Orange County Assessment Appeals Bd. No. 1 (2026) 119
Cal.App.5th 1177, 1185.)
2 As we explain, we hold the trial court erred by denying
leave to amend before it properly granted summary judgment
against Dr. Kumar. We recognize, alternatively, the trial court
could have granted summary judgment against Dr. Kumar then
permitted leave to amend before judgment was entered.
(California Central Airlines v. Fritz (1959) 169 Cal.App.2d 436,
437–438 [plaintiff may be allowed to amend the complaint
following an order granting summary judgment to cure the
absence of standing]; see also Prue v. Brady Co./San Diego, Inc.
(2015) 242 Cal.App.4th 1367, 1384 [amendment permitted after
summary judgment was granted but before judgment was
entered].)
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proceeding by adding or striking out the name of any party. . . .”
(Code Civ. Proc., § 473, subd. (a)(1).) Courts are to exercise this
authority liberally, “‘in favor of . . . disposition of a case upon its
merits.’” (Klopstock v. Superior Court of San Francisco (1941) 17
Cal.2d 13, 22 (Klopstock); see Magpali v. Farmers Group, Inc.
(1996) 48 Cal.App.4th 471, 487 (Magpali) [“courts are bound to
apply a policy of great liberality in permitting amendments to the
complaint at any stage of the proceedings, up to and including
trial”].) We review the trial court’s denial of a motion for leave to
amend the pleadings for abuse of discretion. (Foroudi v. The
Aerospace Corp. (2020) 57 Cal.App.5th 992, 1000.)
Where a plaintiff who lacks standing seeks to amend the
complaint to add a plaintiff who has standing, courts “liberally”
allow such amendments, as long as doing so does not “‘give rise to
a wholly distinct and different legal obligation against the
defendant.’” (Foundation for Taxpayer & Consumer Rights v.
Nextel Communications, Inc. (2006) 143 Cal.App.4th 131, 136;
Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235,
243 (Branick).) Where the defendants were “fully apprised since
the filing of the original complaint of the facts which are relied
upon to state a right to relief against them,” permitting
amendment to substitute a plaintiff without standing with a
plaintiff who has standing is appropriate. (Klopstock, supra, 17
Cal.2d at p. 21.) Indeed, denial of leave to amend in such
circumstances is an abuse of discretion. (Foundation for
Taxpayer & Consumer Rights, at p. 136 [holding it was an abuse
of discretion to deny leave to amend to add a plaintiff with
standing after Proposition 64 deprived the existing plaintiffs of
standing where the new plaintiff “allege[d] the same misconduct
originally alleged”].)
12
Likewise, where a plaintiff seeks to amend a complaint to
add a new cause of action at any point in the proceedings—even
during trial—courts freely allow such an amendment if it is
“‘based upon the same general set of facts as those upon which
the cause of action or defense as originally pleaded was
grounded.’” (Garcia v. Roberts (2009) 173 Cal.App.4th 900, 910
(Garcia).) Unless permitting an amendment to add a new cause
of action would raise “‘“new and substantially different issues,”’”
such amendments “‘are favored since their purpose is to do justice
and avoid further useless litigation.’” (Id. at p. 909, italics
omitted.) Courts may deny leave to amend where adding a new
cause of action would prejudice the opposing party by, for
example, requiring that the court delay trial to permit additional
discovery. (E.g., Magpali, supra, 48 Cal.App.4th at pp. 486-487;
P&D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th
1332, 1345 (P&D Consultants).) But “‘[w]here a party is allowed
to prove facts to establish one cause of action, an amendment
which would allow the same facts to establish another cause of
action is favored, and a trial court abuses its discretion by
prohibiting such an amendment when it would not prejudice
another party.’” (South Bay Building Enterprises, Inc. v. Riviera
Lend-Lease, Inc. (1999) 72 Cal.App.4th 1111, 1124.)
In sum, it is an abuse of discretion to deny leave to amend
“where the opposing party was not misled or prejudiced by the
amendment.” (Kittredge Sports Co. v. Superior Court (1989) 213
Cal.App.3d 1045, 1048 (Kittredge Sports).)
B. Analysis
Here, the trial court abused its discretion by denying Dr.
Kumar the opportunity to amend his complaint to add Devinder
Kumar, M.D., Inc. as a plaintiff and to add a cause of action for
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conversion. The effective replacement of Dr. Kumar with
Devinder Kumar, M.D., Inc. would not “‘give rise to a wholly
distinct and different legal obligation against’” Waecker, who has
been “fully apprised” of the facts giving rise to liability since Dr.
Kumar filed the original complaint. (Branick, supra, 39 Cal.4th
at p. 243; Klopstock, supra, 17 Cal.2d at p. 21.) Likewise, the
conversion claim is “‘based upon the same general set of facts’”
(Garcia, supra, 173 Cal.App.4th at p. 910)—namely, that the lien
obligated Waecker to pay for the medical services Vernon
received from Dr. Kumar out of the settlement proceeds and that
he failed to do so. (See Plummer v. Day/Eisenberg, LLP (2010)
184 Cal.App.4th 38, 45 [“‘“The elements of a conversion are the
plaintiff’s ownership or right to possession of the property at the
time of the conversion; the defendant’s conversion by a wrongful
act or disposition of property rights; and damages”’”; “wrongfully
withhold[ing] or disburs[ing] funds subject to” a lien may form
the basis for conversion cause of action].) Permitting amendment
would have promoted justice, efficiency, and the policy favoring
resolution of matters on their merits. None of the trial court’s
reasons for denial warrant affirmance of the order.
First, the trial court reasoned that allowing leave to amend
would “severely prejudice” Waecker because “[a]dding a new
claim and a new [p]laintiff would require [d]efendants to conduct
discovery and bring a new summary judgment motion.”
However, the new plaintiff and new cause of action sought to be
added do not introduce any new issues into the case that would
require additional discovery or a new summary judgment motion.
Waecker does not point to any particular witness, testimony, or
document that would be necessary to counter either the inclusion
of Devinder Kumar, M.D., Inc. as a plaintiff or the cause of action
14
for conversion. Rather, in the trial court, Waecker merely
pointed to several categories of information he was unable to
depose Dr. Kumar about because Dr. Kumar’s attorney
terminated the deposition early. Waecker’s inability to obtain
that discovery was not connected to the proposed amendments; it
was due to his own delay in deposing Dr. Kumar past the
discovery cut-off, and his failure to file a motion to compel or to
reopen discovery to obtain the testimony he sought. Waecker
also claimed he would need to conduct further discovery to
understand whether Dr. Kumar, the corporation, or both were
the correct plaintiffs. In light of our holding that—as Waecker
himself argued—the undisputed facts establish Devinder Kumar,
M.D., Inc. is the proper plaintiff, we see no occasion for any
additional discovery on that issue.
On appeal, Waecker merely argues that he is “entitled to
pursue discovery and determine if the new entity was in
compliance with corporate requirements.” But the corporation’s
compliance or noncompliance with statutory requirements would
not alter Waecker’s duty to the corporation pursuant to the lien.
(See California Physicians’ Service v. Aoki Diabetes Research
Institute (2008) 163 Cal.App.4th 1506, 1514-1517 [“illegality in . .
. form of business organization does not negate . . . contractual
obligation”].) And as for the argument that the amendments
required trial to be delayed for another round of summary
judgment motions, the trial court already found there to be
triable issues of fact on the merits of the claims. Requiring
Waecker to defend against those claims at trial against Devinder
Kumar, M.D., Inc. rather than against Dr. Kumar individually
would not have been prejudicial to Waecker’s case.
15
Second, the trial court reasoned that Dr. Kumar’s delay in
seeking leave to amend the complaint justified denial of the
motion. Although there is caselaw for the proposition that
“‘“‘unwarranted delay . . . may—of itself—be a valid reason for
denial’”’” of a request to amend the pleadings (Green v. Rancho
Santa Margarita Mortgage Co. (1994) 28 Cal.App.4th 686, 692;
P&D Consultants, supra, 190 Cal.App.4th at p. 1345; Melican v.
Regents of University of California (2007) 151 Cal.App.4th 168,
177), each of those cases involve prejudice to the opposing party
caused by the delay (Green, at p. 692 [amendment “would
interject a new issue which requires further discovery”]; P&D
Consultants, at p. 1345 [same]; Melican, at p. 176 [amendment
would “present a ‘moving target’”]). We decline to decouple the
broad language of these cases from their facts, particularly in
light of the authority holding it is an abuse of discretion to deny
amendment “where the opposing party was not misled or
prejudiced by the amendment.” (Kittredge Sports, supra, 213
Cal.App.3d at p. 1048.)
Third, the trial court reasoned that Dr. Kumar’s motion did
not comply with Rule 3.1324’s requirements that the motion state
the “page, paragraph, and line number” where the amendments
are sought to be added and that the supporting declaration
specify “[w]hen the facts giving rise to the amended allegations
were discovered” and “why the request for amendment was not
made earlier.” (Cal. Rules of Court, rule 3.1324(a)(3), (b)(3)-(4).)
Although Dr. Kumar did not identify the specific paragraph and
line number of each amendment, his motion specified that it
sought to “[c]hange[] the [p]laintiff,” “[a]mend[] Paragraph 1 to
clarify the roles of the parties,” and “[a]dd[] a cause of action for
Conversion as the Seventh Cause of Action,” and he included the
16
specific language he sought to add for each change. This fully
apprised Waecker and the court of the changes he sought to
make. Likewise, his attorney’s supporting declaration specified
that the amendment changing the plaintiff “was not made earlier
as it was believed that such amendment was unnecessary” until
“[d]efendants’ filing a Motion for Summary Adjudication
challenging the [p]laintiffs’ name” and that the legal theory of
conversion arose “[d]uring the course of researching the law on
this case.” Under these circumstances, Rule 3.1324 was not a
valid basis for rejecting Dr. Kumar’s motion.
In sum, because Waecker would not be prejudiced or misled
by an amended complaint substituting the proper plaintiff and
adding a legal theory supported by the same set of facts originally
alleged, the trial court erred in denying leave to amend.
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DISPOSITION
The order denying leave to amend is reversed. The
judgment against Devinder Kumar, as an individual, is affirmed.
The case is remanded to the trial court for further proceedings
consistent with this opinion. Each party is to bear their own
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
KUMAR, J.
We concur:
BAKER, Acting P. J.
KIM (D.), J.
Retired Judge of the Superior Court of Los Angeles County,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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