In what circumstances will the court grant leave to amend a complaint to conform to proof after the trial has concluded?

469. Variance misleading adverse party deemed material

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.

473. Mistake, inadvertence, surprise or excusable neglect

(a)

(1) The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.

[...]

576. Amendment of pleading or pretrial conference order

Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.

Gaunt next maintains that the court erred by permitting Nelson to amend her complaint at trial to include the cause of action for intentional infliction of emotional distress. A trial court has broad discretion to allow the filing of amendments to pleadings to conform to proof after a trial has been concluded (Rieger v. Rich, 163 Cal.App.2d 651, 666, 329 P.2d 770). Granting leave to file such an amendment is not an abuse of discretion unless the amendment brings new and substantially different issues into the case (Trafton v. Youngblood, 69 Cal.2d 17, 31, 69 Cal.Rptr. 568, 442 P.2d 648). Nelson's cause of action for intentional infliction of emotional distress was based on the [125 Cal.App.3d 637] same fact situation that led to her other causes of action and did not raise a new and substantially different issue. The trial court did not abuse its discretion by allowing the amendment to conform to the proof.

The trial court denied, in writing, the plaintiffs’ motion to add Minassian back into the case by filing the fifth amended complaint, yet later effectively ignored its own ruling because it relied on the fifth amended complaint for its decision and judgment against Minassian. This was an abuse of discretion.

[76 Cal.App.5th 519]

In their motion for leave to file the fifth amended complaint, plaintiffs relied upon Code of Civil Procedure section 473, subdivision (a)(1), which provides that "[t]he court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by

[291 Cal.Rptr.3d 570]

adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect.... The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars ...."

" ‘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." [Citation.]’ " (Board of Trustees v. Superior Court (2007) 149 Cal.App.4th 1154, 1163, 57 Cal.Rptr.3d 755.)

As the trial court recognized in its August 2019 order denying leave to file an amended complaint adding Minassian as a defendant after trial, adding him back into the case is prejudicial to his due process rights. First, both sides proceeded as if Minassian had been dismissed from the case for at least several months before trial. Plaintiffs did not include Minassian as a defendant in their statement prepared for trial, and on the morning before trial began, plaintiffs stated on the record that they would need to do something to add Minassian back into the case.

Second, nothing during trial put Minassian on notice that the trial court viewed him as part of the case. The trial court instructed WGE's counsel to do research about adding a party, which would be relevant only if the fourth amended complaint, which omitted the individual parties, was the operative complaint. Counsel for Los Robles had also been Minassian's counsel, so his presence was not an indication that Minassian was participating in the trial. As counsel for Los Robles and Minassian said at trial, if the court were to allow leave to amend to bring Minassian back into the case, Minassian should at least be allowed to conduct discovery, litigate, and participate at trial or he would be severely prejudiced. Nonetheless, the trial went forward with no opportunity for Minassian to prepare for trial.

California courts have denied leave to amend where the proposed amendment to the complaint is during or after trial, and the amendment would require the defendant to have litigated or acted differently to assert his rights before and at trial. (See, e.g., Cota v. County of Los Angeles (1980) 105 Cal.App.3d 282, 293, 164 Cal.Rptr. 323 ["Granting of the motion would have been prejudicial to defendants, inasmuch as they were not prepared to defend against such evidence"].) For example, where a plaintiff filed a motion

[76 Cal.App.5th 520]

to amend mid-trial that changed how the defendant might have litigated because it added a new theory of damages, a court of appeal found it would result in prejudice to the defendant because he had not been on notice to conduct discovery on the issue, nor to retain an expert to testify at trial, and he may have acted differently in respect to settlement negotiations. (Duchrow v. Forrest (2013) 215 Cal.App.4th 1359, 1381, 156 Cal.Rptr.3d 194; see also Magpali v. Farmers Group, Inc . (1996) 48 Cal.App.4th 471, 488, 55 Cal.Rptr.2d 225 ["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"].)

We conclude that Minassian was severely prejudiced by the post-trial amendment of the operative complaint because he lacked notice that he was part of the case at trial or in the months before. His due process rights were violated because he reasonably relied upon the filed stipulation and fourth amended complaint, and upon statements by the court at trial that he would need to be pled back into the case. The trial court abused its discretion in issuing a judgment against Minassian.

We begin our consideration of this issue with an overview of the relevant legal principles. It is well established that leave to amend a complaint is entrusted to the sound discretion of the trial court, and "`"[t]he exercise of that discretion will not be disturbed on appeal absent a clear showing of abuse."'" (Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 242 [46 Cal.Rptr.3d 66, 138 P.3d 214].)

(1) Code of Civil Procedure¹² section 473 gives trial courts discretion to allow a party to amend his or her pleadings "in furtherance of justice," while section 576 states that such leave to amend may be granted even after the commencement of trial. Section 469 specifically governs motions to amend at trial to conform to proof, which was the basis for the trial court's order in the present case. Section 469 provides in relevant part as follows: "No variance between the allegation in a pleading and the proof is to be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits." Such amendments at trial to conform to proof, "if not prejudicial, are favored since their purpose is to do justice and avoid further useless litigation." (Union Bank v. Wendland (1976) 54 Cal.App.3d 393, 400 [126 Cal.Rptr. 549].)

(3) Having considered the above arguments in light of the record, we are persuaded that allowing the amendment at trial unfairly prejudiced defendants and therefore constituted an abuse of discretion. As recognized by the Court of Appeal in Brautigam v. Brooks (1964) 227 Cal.App.2d 547, 560 [38 Cal.Rptr. 784], if a proposed amendment during trial is prejudicial to the opposing party, it is reversible error to grant leave to amend to conform to proof. In that case, shortly before evidence was presented to the jury the defendant withdrew the issue of contributory negligence, which naturally affected the manner in which the plaintiff questioned the witnesses and elicited testimony during the trial. After the evidence was presented, the defendant changed his mind and moved to amend to assert the defense of contributory negligence with the understanding that both parties could introduce new evidence on that issue. The trial court granted the motion. On appeal, the order was reversed due to the prejudicial effect the amendment had on the manner evidence was presented at trial, inevitably leading to an undue emphasis on the issue of contributory negligence. (Ibid.) In so holding, the Court of Appeal quoted with approval language from prior decisions that

[173 Cal.App.4th 913]

our courts should not tolerate a party to "`blow hot and cold in this manner'" (ibid., cases collected therein) if it would prejudice his or her opponent.

(4) Here, plaintiff's deposition testimony to the effect that there was only an oral loan agreement between the parties concerning the property, and that he had no knowledge of any agreement in the nature of a written lease-option, reasonably limited the focus of defendants' discovery efforts and the manner in which defendants prepared for trial.¹⁶ As defendants point out, a number of significant factual issues that specifically related to the lease-option agreement were not pursued in plaintiff's deposition or in other discovery, since it became unnecessary to do so in light of what plaintiff asserted under oath at his deposition. (See fn. 13, ante.) Indeed, since plaintiff denied knowledge of the lease-option agreement, the pursuit of discovery from plaintiff on that subject could reasonably go no further. Portions of plaintiff's deposition testimony, as necessarily limited in scope due to plaintiff's claimed lack of knowledge, were read to the jury at trial because of plaintiff's death.

In view of these circumstances and the crucial fact that at the time of trial plaintiff was deceased and so could not be questioned further on any issues relevant to the lease-option agreement, we conclude that defendants were unfairly prejudiced when the trial court permitted the amendment during trial and thereby allowed plaintiff (through his wife as successor-in-interest) to materially reverse his position by asserting a cause of action for breach of the lease-option agreement. Plaintiff, whom it turns out knew about the lease-option agreement but refused to allow his attorney to raise it, cannot be permitted through his successor-in-interest to "`blow hot and cold in this manner'" to defendants' prejudice. (Brautigam v. Brooks, supra, 227 Cal.App.2d at p. 560.)¹⁷ For these reasons, the trial court's order granting leave to amend is reversed.

A court has the discretion to allow a party to amend its pleading to conform to the proof at trial, even after the trial itself is over. (Code Civ. Proc., §§ 469 [allowing amendment of any pleading to conform to proof at trial so long as the variance has not "actually misled the adverse party to his prejudice in maintaining his . . . defense upon the merits"], 473 [court may allow a party to amend any pleading "in furtherance of justice"], 576 [allowing amendment of any pleading "at any time before or after commencement of trial"]; Glougie v. Glougie (1916) 174 Cal. 126, 132.) As a general matter, such amendments are favored. (Union Bank v. Wendland (1976) 54 Cal.App.3d 393, 400; Trafton, supra, 69 Cal.2d at p. 31 ["[s]uch amendments have been allowed with great liberality"].)

Page 12

More specifically, a court deciding whether to allow such an amendment is to consider "'(1) whether facts or legal theories are being changed and (2) whether the opposing party will be prejudiced by the proposed amendment.'" (Garcia v. Roberts (2009) 173 Cal.App.4th 900, 910; Duchrow v. Forrest (2013) 215 Cal.App.4th 1359, 1378.) These two factors "'represent[] a different side of the same coin.'" (Garcia, at p. 910.) Where the movant "attempts to set forth an entirely different set of facts by way of amendment," the amendment is more likely to be prejudicial. (Simone v. McKee (1956) 142 Cal.App.2d 307, 314.) But "'[i]f the same set of facts supports merely a different theory[,] . . . no prejudice can result,'" and the amendment may be appropriate. (Garcia, at p. 910.) An amendment that changes the legal theory is prejudicial (and hence should be denied) if it is "'"a wholly different cause of action"'"—that is, if it adds a legal theory based on "a wholly distinct and different legal obligation against the defendant." (Klopstock v. Superior Court (1941) 17 Cal.2d 13, 20, quoting Frost v. Witter (1901) 132 Cal. 421, 424; Unruh v. Smith (1954) 123 Cal.App.2d 431, 438 [amendment must not "substantially chang[e] the cause of action"]; Hathaway v. Siskiyou Union High School Dist. (1944) 66 Cal.App.2d 103, 110 ["a plaintiff may not sue upon one theory and recover upon proof of another"].)

The trial court did not abuse its discretion in allowing plaintiff to amend his complaint to allow him to pursue mental suffering damages under his previously alleged claim for elder abuse. Although plaintiff's complaint alleged, and was captioned as, a claim for financial elder abuse, the mechanism of that abuse—namely, defendant's campaign of harassing calls—was alleged in the complaint and was proven at trial. The complaint

Page 13

also broadly sought "compensatory," "consequential," and "incidental" damages." The caption is not controlling. (Civ. Code, § 3528; Brown v. Wells Fargo Bank, NA (2012) 204 Cal.App.4th 1353, 1356.) More to the point, the amendment also did not allege "'a wholly different cause of action.'" Although the current statutory definition of "[a]buse of an elder" lists three types of abuse and lists "treatment with resulting . . . mental suffering" separately from "[f]inancial abuse" (Welf. & Inst. Code, § 15610.07, subd. (a)), the statutory definition in effect at the time of the 2014 calls listed only two types of abuse and listed "mental suffering" and "financial abuse" together (Former Welf. & Inst. Code, § 15610.07, as amended by Stats. 1998, ch. 946, § 2 and repealed by Stats. 2015, ch. 285, §1). Critically, both financial abuse and mental abuse are simply different forms of elder abuse. (Fenimore v. Regents of University of California (2016) 245 Cal.App.4th 1339, 1346-1347 [so noting].) And both forms of elder abuse protect the same primary right—that is, the elder's right "not to be abused or defrauded." (Estate of Dito (2011) 198 Cal.App.4th 791, 802.) Given this overlap, we cannot conclude that the trial court abused its discretion in allowing the amendment.

After trial, Munoz asked to amend the complaint according to proof to include $33,000 in unpaid rent for January through March 2021. He noted that this amount was written in the complaint, but he "failed to check the box" adjacent to that demand. The court granted the motion. The court stated that "any reasonable person looking at this" would conclude the box was meant to be checked. The court opined that the courts were "backlogged," and "in the name of judicial economy" it would be "an exercise in futility" to require a separate lawsuit for unpaid rent.

When the evidence at trial establishes unlawful detainer, the court must amend the complaint to conform to proof. (Code Civ. Proc., § 1173.) We review the order for abuse of discretion. (Trafton v. Youngblood (1968) 69 Cal.2d 17, 31.) The trial court found that Munoz meant to check the box demanding $33,000 in unpaid rent. But in allowing the amendment, the court abused its discretion because there was no proof of service of a notice to

6

pay rent or quit, which is required to obtain unpaid rent in an unlawful detainer action.

Because this unlawful detainer action is based on expiration of a fixed-term lease, it was properly filed without the service of a notice to quit, or to pay rent or quit. (Code Civ. Proc., § 1161, subd. 1; Civ. Code, § 1933, subd. 1; McKissick v. Ashby (1893) 98 Cal. 422, 425; Camp v. Matich (1948) 87 Cal.App.2d 660, 665.) But Munoz is not entitled to unpaid rent because the complaint did not allege, and the evidence did not show, that Ruiz was served with a notice to pay rent or quit with a demand for a specific or estimated amount of unpaid rent. (Code Civ. Proc., §§ 1161, subd. 2, 1161.1, subd. (a).)

"'[T]he unlawful detainer statute is strictly construed and . . . relief not authorized by that statute may not be given due to the summary nature of the proceedings.'" (Saberi v. Bakhtiari (1985) 169 Cal.App.3d 509, 515 (Saberi).) "'[A] distinction is made in [Code of Civil Procedure] section 1174 between rent which has accrued prior to termination of the tenancy and the damages caused by the unlawful detention after the termination.'" (Ibid.) In an unlawful detainer case, the court may award "rent due, if the alleged unlawful detainer be after default in the payment of rent." (Code Civ. Proc., § 1174, subd. (b), italics added.) "Rent . . . is recoverable only when the proceeding is grounded upon . . . default in the payment of rent." (Saberi, at p. 515, italics added; Hudec v. Robertson (1989) 210 Cal.App.3d 1156, 1163.) Munoz concedes, "While further notice was not required to file this action, a further notice-one to pay rent or quit-was required to recover the past due rent sought in the complaint."

7

Where unpaid rent cannot be sought in an unlawful detainer action, it can be sought by filing a separate civil action. (See Hong Sang Market, Inc. v. Peng (2018) 20 Cal.App.5th 474, 492-497.) The amendment here is not justified by "judicial economy." The "landlord's public policy arguments, for avoiding multiplicity of actions . . . cannot overcome unequivocal statutory restrictions." (Balassy v. Superior Court (1986) 181 Cal.App.3d 1148, 1153.)

Munoz contends that Ruiz forfeited the objection regarding unpaid rent by failing to raise it before trial. Not so. In his answer, Ruiz alleged that paragraph 19, which included the unchecked box demanding unpaid past rent, was "false." Ruiz also alleged an affirmative defense that the complaint failed to allege service of a notice to quit.

We also reject Munoz's contention that the lack of evidence of service of a notice to pay rent or quit was based on Ruiz's "improper objection" to the evidence. "Under the doctrine of invited error, a party may not object to the sufficiency of the evidence to support a finding against him when the lack is the result of improper exclusion of evidence at his own instance." (Chakalis v. Elevator Solutions, Inc. (2012) 205 Cal.App.4th 1557, 1570 [relevance objection "not well taken" because evidence clearly relevant].) Here, the court properly sustained Ruiz's relevance objection regarding service of a notice to pay rent or quit because the complaint was based solely on expiration of a fixed-term lease.

Because there was no evidence of a notice to quit or pay rent served on Ruiz, the court abused its discretion in granting the amendment. Accordingly, the portion of the judgment for $33,000 in unpaid rent is vacated.

1173. Amendment of complaint when evidence shows defendant guilty of offense other than charged in complaint

When, upon the trial of any proceeding under this chapter, it appears from the evidence that the defendant has been guilty of either a forcible entry or a forcible or unlawful detainer, and other than the offense charged in the complaint, the Judge must order that such complaint be forthwith amended to conform to such proofs; such amendment must be made without any imposition of terms. No continuance shall be permitted upon account of such amendment unless the defendant, by affidavit filed, shows to the satisfaction of the Court good cause therefor.