Opinion
F060461 Super. Ct. No. 08CECG03497
12-29-2011
DENNIS BALAKIAN, Plaintiff and Appellant, v. MERCEDES-BENZ USA, LLC, Defendant and Respondent.
Krohn & Moss, Heather A. Antoine, Jennifer L. Basola; and Scott M. Cohen for Plaintiff and Appellant. Universal, Shannon & Wheeler, Jon D. Universal and Joseph R. Wheeler for Defendant and Respondent .
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Donald S. Black, Judge.
Krohn & Moss, Heather A. Antoine, Jennifer L. Basola; and Scott M. Cohen for Plaintiff and Appellant.
Universal, Shannon & Wheeler, Jon D. Universal and Joseph R. Wheeler for Defendant and Respondent.
Plaintiff Dennis Balakian filed a complaint seeking remedies under the Song-Beverly Consumer Warranty Act (Civ. Code, § 1790 et seq. (Song-Beverly Act)) and the federal Magnuson-Moss Warranty Act (15 U.S.C. § 2301 et seq. (Magnuson-Moss Act)) regarding alleged defects in a 2004 Mercedes Benz motor vehicle (the vehicle). When defendant Mercedes-Benz USA, LLC learned that plaintiff was not the owner, purchaser or lessee of the vehicle and the actual owner was a corporation known as West Coast Waste, Inc. (WCW), defendant moved for summary judgment on the ground that plaintiff had no standing to sue because he was not the real party in interest. Shortly before the hearing of defendant's motion for summary judgment, plaintiff filed a motion for leave to amend his complaint to insert WCW as a new or substitute plaintiff. No explanation was given for the false allegations in the original complaint or the delay in seeking amendment. The trial court granted summary judgment in defendant's favor and rejected plaintiff's motion to amend. Plaintiff now appeals, contending the trial court erred on both motions. We will affirm.
FACTS AND PROCEDURAL HISTORY
On October 7, 2008, plaintiff filed the instant lawsuit asserting causes of action under state and federal consumer warranty statutes. Plaintiff, as an individual, was the sole plaintiff named in the complaint; no mention was made of WCW. The complaint alleged that on May 14, 2006, plaintiff was the purchaser of the vehicle, a 2004 Mercedes-Benz G55, manufactured by defendant. The purchase allegedly included the provision of certain express and implied warranties. After plaintiff's purchase, the vehicle began to manifest several defects, including problems with the functioning of the windows, sunroof, brakes, climate control, electrical system, engine, transmission and wheels. Plaintiff brought the vehicle to defendant's authorized service dealers on multiple occasions, but after a reasonable number of attempts the defects were not repaired. Based on these alleged facts, the complaint included four causes of action: the first and second causes of action for violation of the Magnuson-Moss Act, and the third and fourth causes of action for violation of the Song-Beverly Act. The remedies sought by plaintiff against defendant included restitution of all monies paid, consequential damages, civil penalties and reasonable attorney fees.
On December 23, 2009, defendant moved for summary judgment or, in the alternative, for summary adjudication. The motion was made primarily on the ground that plaintiff had no standing to sue under the consumer warranty statutes because he did not purchase, own or lease the vehicle. That is, plaintiff was not the real party in interest for purposes of maintaining any of the causes of action; another party was (i.e., WCW). The hearing date of the summary judgment motion was March 11, 2010. The trial date was April 12, 2010.
For convenience, we generally refer to defendant's motion as simply a motion for summary judgment.
On February 10, 2010, plaintiff voluntarily dismissed the third and fourth causes of action of his complaint, which were his claims under the Song-Beverly Act. The two remaining causes of action were plaintiff's claims under the federal Magnuson-Moss Act.
On February 11, 2010, plaintiff filed a motion to amend his complaint. The motion sought leave to file a first amended complaint adding WCW as a new plaintiff in the action. The ground for the motion was that the proposed amendment would merely "conform" plaintiff's pleading to "proof" in the sense that evidence confirmed that WCW was the actual owner and the purchaser of the vehicle. According to plaintiff, no prejudice would result from the amendment because the vehicle itself and the asserted defects were the same, and because "the parties have been aware" for some time that WCW was the registered owner and purchaser of the vehicle. Plaintiff's motion to amend was set for March 30, 2010, which meant it was not scheduled to be heard by the trial court until 19 days after defendant's summary judgment motion.
Nothing in the record suggests that plaintiff sought an earlier hearing date, whether through ex parte relief or otherwise.
On February 25, 2010, plaintiff filed opposition to defendant's motion for summary judgment. Plaintiff conceded that the facts set forth in defendant's separate statement were undisputed. Plaintiff argued that he nevertheless had standing to sue under the Magnuson-Moss Act because of other facts, including that he was (1) president of WCW and the person who took possession of the vehicle; (2) the primary driver of the vehicle; and (3) the person who tendered the vehicle for repairs pursuant to the manufacturer's warranties. Based on these factual assertions and on his interpretation of case law, plaintiff contended that he qualified as a "consumer" for purposes of the Magnuson-Moss Act and therefore had standing to sue. Defendant's reply pointed out that plaintiff failed to present supporting facts to show he was potentially a consumer under any of the criteria set forth in the Magnuson-Moss Act.
On March 10, 2010, the trial court issued its tentative ruling to grant defendant's motion for summary judgment. The trial court also noted, in its tentative ruling, the existence of plaintiff's pending motion to amend the complaint, but stated it would be inclined to deny that motion due to unexplained delay and prejudice.
On March 11, 2010, at the hearing of the motion for summary judgment, the trial court heard the parties' oral argument. Plaintiff's counsel primarily argued that the trial court should proceed to grant plaintiff's motion to amend, although the actual hearing date of that motion was March 30, 2010. The trial court commented on the motion to amend, noting there had been no explanation for the delay in seeking amendment, and also stated as follows: "Part of the problem here ... is there is an element of fraud on the court here. [Plaintiff], at least through the pleadings that he's filed in this case, has taken the position that he was the owner of the vehicle; and yet I see in the moving papers that he testified at his deposition that the corporation bought the vehicle, deducted the depreciation for the vehicle ... and in other ways owned this vehicle. And for the year and a half that this case has been pending, [plaintiff] has been the only plaintiff. And now, a month before trial—around a month before trial, there's an attempt to substitute the corporation." The parties then proceeded to argue the summary judgment motion. After the conclusion of oral argument, the trial court took the matter under submission.
On March 16, 2010, defendant filed opposition to plaintiff's motion to amend. Defendant's opposition argued the trial court should deny the motion because plaintiff made false allegations without excuse or explanation and did not explain his failure to amend the complaint at an earlier time. Moreover, since plaintiff's motion was filed only one month prior to the hearing on defendant's pending summary judgment motion and only two months prior to the trial date, defendant argued it would be prejudicial to allow an unexcused last-minute addition of a new party plaintiff.
On March 16, 2010, the trial court issued its order granting defendant's motion for summary judgment. The trial court concluded that under the undisputed facts, defendant had no standing to sue and therefore defendant was entitled to judgment as a matter of law. On the issue of leave to amend, the order stated: "After defendant's motion was filed, plaintiff filed a motion for leave to amend his complaint to substitute a new plaintiff, [WCW] for himself. Though the motion was discussed at the hearing on this motion, the court need not address it here, as the hearing is not scheduled until March 30, 2010 and the court herein grants defendant's motion."
On March 25, 2010, the trial court entered judgment in defendant's favor. Notice of entry of judgment was filed on April 9, 2010.
On April 22, 2010, plaintiff filed an ex parte application requesting the trial court to formally grant or deny plaintiff's motion for leave to amend. After receiving supplemental briefing on the issue, the trial court denied plaintiff's application because once judgment had been entered, it had no further power to rule on the motion.
Plaintiff filed a timely notice of appeal from the judgment.
DISCUSSION
I. Summary Judgment
Summary judgment is appropriate when all of the papers submitted show there is no triable issue of any material fact and the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) "The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)
Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure.
A defendant may move for summary judgment if it is contended that the action has no merit. (§ 437c, subd. (a).) A defendant meets its initial burden of showing a cause of action is without merit if that party has shown that one or more elements of the cause of action cannot be established, or that there is a complete defense thereto. (§ 437c, subd. (p)(2).) Once the defendant makes such a showing, the burden shifts to the plaintiff to produce evidence demonstrating the existence of a triable issue of material fact. (Ibid.; Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 849.)
A. Standard of Review
On appeal from a summary judgment, our task is to independently determine whether an issue of material fact exists and whether the moving party is entitled to summary judgment as a matter of law. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1601.) "We independently review the parties' papers supporting and opposing the motion, using the same method of analysis as the trial court. Essentially, we assume the role of the trial court and apply the same rules and standards." (Kline v. Turner (2001) 87 Cal.App.4th 1369, 1373.) We apply the same three-step analysis required of the trial court. First, we identify the issues framed by the pleadings since it is these allegations to which the motion must respond. Second, we determine whether the moving party's showing has established facts which negate the opponent's claim and justify a judgment in the moving party's favor. When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable issue of material fact. (Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 503; Chevron U.S.A., Inc. v. Superior Court (1992) 4 Cal.App.4th 544, 548.)
In so doing, we view the evidence in the light most favorable to the party opposing the motion; we liberally construe the opposing party's evidence, strictly construe the moving party's evidence, and resolve all doubts in favor of the opposing party. (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)
B. Defendant Showed That Plaintiff Lacked Standing
As noted, defendant's moving papers established that plaintiff did not purchase or own the vehicle. Rather, it was shown that WCW, a corporate entity, purchased the vehicle, made all payments toward its purchase, took annual deductions on its tax returns for depreciation of the vehicle's value, and was at all relevant times its sole registered owner. Plaintiff did not dispute these material facts. As we now explain, defendant's showing was sufficient to meet its burden of proof that it was entitled to judgment because plaintiff was not the real party in interest and therefore lacked standing to sue.
Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute. (§ 367.) A party who is not the real party in interest lacks standing to sue. (Redevelopment Agency of San Diego v. San Diego Gas & Electric Co. (2003) 111 Cal.App.4th 912, 920-921; Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 1004.) "A real party in interest ordinarily is defined as the person possessing the right sued upon by reason of the substantive law." (Killian v. Millard (1991) 228 Cal.App.3d 1601, 1605.) "'The question of standing to sue is one of the right to relief and goes to the existence of a cause of action against the defendant [citation].' [Citation.]" (Ibid.) A litigant's standing to sue is a threshold issue to be resolved before the matter can be reached on its merits. (Buckland v. Threshold Enterprises, Ltd. (2007) 155 Cal.App.4th 798, 813.)
In Vinci v. Waste Management, Inc. (1995) 36 Cal.App.4th 1811 (Vinci), the plaintiff, Leonard Vinci, owned and operated a recycling business known as Vinci Enterprises, Inc. The plaintiff sued Waste Management, Inc. for antitrust violations under the Cartwright Act (Bus. & Prof. Code, § 16700 et seq.), alleging that in breach of an agreement to settle a previous lawsuit, Waste Management Inc. deprived Vinci Enterprises, Inc. of the quality material needed to operate its business. The trial court sustained a demurrer based on the plaintiff's lack of standing to maintain the action. The Court of Appeal affirmed, explaining as follows: "The complaint does not reveal the exact relationship between [the] plaintiff and Vinci Enterprises, Inc., but even if we read into the complaint an allegation that [the] plaintiff was sole shareholder of the corporation, we conclude that [the] plaintiff lacks standing to sue. The party directly injured by Waste Management's conduct was not [the] plaintiff, an individual, but Vinci Enterprises, Inc., a corporation. The remedy lies with the corporation, not the shareholder, even if the injured shareholder is the sole shareholder. [Citations.]" (Vinci, supra, at p. 1815.)
A similar result was reached in Gantman v. United Pacific Ins. Co. (1991) 232 Cal.App.3d 1560 (Gantman). In that case, the plaintiff, Melvyn Gantman, owned a residence in a planned residential development and was a member and officer of the homeowner's association, a nonprofit corporation. The plaintiff's residence sustained water damage in a rainstorm and the homeowner's association made a claim to its insurer for the damage. When the insurer paid only a portion of the damage, the plaintiff sued the insurance company for the balance. The trial court granted the insurance company's motion for summary judgment because it held that the plaintiff lacked standing to sue since the insurance policy was purchased by and issued to the homeowner's association, not to the plaintiff individually, and the plaintiff did not have standing as an additional insured or as an express beneficiary of the contract. The Court of Appeal affirmed, stating that the plaintiff was not the real party in interest since "'[s]omeone who is not a party to [a] contract has no standing to enforce the contract or to recover extra-contract damages for wrongful withholding of benefits to the contracting party.' [Citation]." (Id. at p. 1566.)
Here, as in Vinci and Gantman, it is clear that the real party in interest was the corporation, WCW, not plaintiff as an individual. Since plaintiff did not purchase or own the vehicle, and no other interest in the vehicle was alleged or shown to exist in the opposition to the motion, he had no standing to enforce rights arising under express or implied warranties or under warranty statutes pertaining to the vehicle. Those rights belonged to WCW, which was required to sue in its own name. (§ 367; see Corp. Code, § 800 [individual shareholder may not sue in corporate name, unless action is a shareholder derivative suit].) As the trial court held, plaintiff was not the person possessing the right to obtain relief under the Magnuson-Moss Act since that statute limits a private right of action to "a consumer who is damaged ...." (15 U.S.C. § 2310(d)(1).) We agree with this determination by the trial court. Under the undisputed facts, plaintiff did not meet the standing threshold to maintain a private cause of action under the Magnuson-Moss Act, since any recoverable damage would necessarily be that of the corporation. Therefore, standing to sue was negated by defendant's motion, and the burden shifted to plaintiff to demonstrate the existence of a triable issue of material fact. (§ 437c, subd. (p)(2).)
C. Plaintiff Failed to Show Triable Issue of Fact
Plaintiff attempted to show that he had standing to sue as an individual under the Magnuson-Moss Act by asserting that he qualified as a "consumer" under the Act. The Magnuson-Moss Act provides that a private cause of action may be maintained by a "consumer" who is damaged by the failure of a warrantor to comply with its obligations under the Act or under a written or implied warranty. (15 U.S.C. § 2310(d)(1).) The term "consumer" is defined under the Act to include (1) the buyer of the consumer good; (2) any person to whom the product is transferred during the warranty period; or (3) any other person entitled under the terms of the warranty or under applicable State law to enforce the obligations of the warranty. (15 U.S.C. § 2301(3).)
For convenience, we sometimes refer to the Magnuson-Moss Act as simply the Act.
Even if standing could be shown on the basis of "consumer" status alone, without a showing of damages by that consumer, plaintiff's showing has fallen short as we proceed to explain.
As summarized in Atkinson v. Elk Corporation of Texas (2006) 142 Cal.App.4th 212: "Unlike Song-Beverly, which allows only a buyer of consumer goods to bring an action (Civ. Code, § 1794), Magnuson-Moss permits a 'consumer' to bring an action for damages and other relief when a warrantor breaches its obligations under a warranty or under the act. (15 U.S.C. § 2310(d).) The term 'consumer' includes not only a 'buyer (other than for purposes of resale) of any consumer product,' but also 'any person to whom such product is transferred during the duration of an implied or written warranty (or service contract) applicable to the product, and any other person who is entitled by the terms of such warranty (or service contract) or under applicable State law to enforce against the warrantor (or service contractor) the obligations of the warranty (or service contract).' (15 U.S.C. § 2301(3).)" (Id. at pp. 222-223.)
Plaintiff failed to establish that he was a consumer under any of the three categories provided in the Magnuson-Moss Act. (See 15 U.S.C. § 2301(3).) First, it was undisputed that plaintiff was not a "buyer" of the vehicle. Second, plaintiff failed to assert specific facts showing the vehicle was "transferred" by WCW to plaintiff during the duration of the warranty. The evidence focused on plaintiff's permissive use of WCW's vehicle as the company's president, not on an actual transfer of a right or interest in the vehicle. Moreover, plaintiff's appellate briefs make only a cursory mention of this second category of potential consumer status and provide no meaningful legal argument or analysis. We therefore treat the issue as forfeited. (People v. Stanley (1995) 10 Cal.4th 764, 793; Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.) Even if it were not forfeited, plaintiff's passing reference to cases indicating that a lease could potentially constitute a transfer for purposes of the Magnuson-Moss Act is of no help, since there was no evidence of a lease or any other transfer of rights in this case. (See, e.g., Voelker v. Porsche Cars North America, Inc. (7th Cir. 2003) 353 F.3d 516; Ryan v. American Honda Motor Co., Inc. (N.J. 2006) 896 A.2d 454; Peterson v. Volkswagen of America, Inc. (Wis. 2005) 697 N.W.2d 61.)
At oral argument of this appeal, plaintiff referred only to the category three basis for standing.
There is a split of authority whether a lessee is a transferee for purposes of the second category of consumer standing under the Act. (See, e.g., Peterson v. Volkswagen of America, Inc., supra, 697 N.W.2d at p. 68.) We need not resolve that conflict here, since this was not a leased vehicle.
Plaintiff also failed to show that he was a "consumer" under the third and final category of the statutory definition. That is, he failed to demonstrate that he was entitled by the terms of the warranty itself or under applicable provisions of state law to enforce the obligations of the warranty against defendant. As to the terms of defendant's express warranty, it was unequivocally limited by its terms to the original owner and to subsequent owners of the vehicle. The terms of the warranty, therefore, do not apply to plaintiff since he has never been an owner of the vehicle. As to the potential existence of a state law ground that would give plaintiff—individually—the right to enforce the warranty in this case, plaintiff has presented none. He dismissed his only state law causes of action—i.e., under the Song-Beverly Act—in apparent recognition that he had no standing since that statute applies to a "buyer" of consumer goods. (Civ. Code, § 1794.) Nor are we aware of any basis under state law for permitting a party who was never the purchaser, owner, transferee, or lessee of a warranted vehicle, to sue to personally receive the benefits of the vehicle's warranty.
There was also no basis for an implied warranty claim under state law, since implied warranties of merchantability and fitness have a duration of no more than one year following the sale of a new consumer good to a retail buyer. (Civ. Code, § 1791.1, subd. (c); Atkinson v. Elk Corporation of Texas, supra, 142 Cal.App.4th at pp. 227-232.) Here, the vehicle was first sold new in December 2003. WCW did not purchase the vehicle until December 2005.
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Plaintiff's suggestion he meets the definition of "consumer" merely because he is president of WCW and primarily drives the vehicle is incorrect. The statutory definition under the Magnuson-Moss Act of a consumer must be satisfied and plaintiff has failed to show that he comes within that definition. Nor would the fact that he personally delivered the vehicle to the authorized repair facilities create in him, personally, any warranty rights. Anytime a corporately owned vehicle is tendered for repairs under a warranty, there is necessarily a human agent involved. Since plaintiff was the president of WCW and the one who usually drove the vehicle, it was not surprising that he handled the warranty issues, but that conferred no rights on him personally.
We conclude that plaintiff failed to demonstrate the existence of a triable issue of material fact on the issue of standing to sue. That is, he failed to present any legal or factual basis for concluding that he had standing to sue as an individual. Accordingly, the trial court was correct in granting defendant's motion for summary judgment.
II. Motion for Leave to Amend
During the pendency of the motion for summary judgment, plaintiff filed a motion for leave to amend to insert WCW as a new plaintiff. As noted earlier, the trial court commented on plaintiff's motion to amend (e.g., in its tentative ruling and at the oral argument on the motion for summary judgment), indicating the court's inclination to deny the motion, but ultimately sidestepped the issue in its written order by observing that the motion to amend had a subsequent hearing date. The trial court proceeded to grant summary judgment and, before the hearing of the motion to amend took place, entered a judgment in defendant's favor. On this record, we construe the trial court's prejudgment rulings leading to entry of judgment as an implicit denial of plaintiff's motion to amend. Plaintiff contends the trial court abused its discretion in denying leave to amend. We disagree.
Preliminarily, we note that plaintiff's motion to amend sought a proper form of relief under section 473. Defendant incorrectly argued that plaintiff is not entitled to substitute a new party into the case where the original party lacked standing. To the contrary, "section 473 has been construed to permit amendment to substitute a plaintiff with standing for one who is not a real party in interest. [Citations.]" (California Air Resources Bd. v. Hart (1993) 21 Cal.App.4th 289, 300; accord, CashCall, Inc. v. Superior Court (2008) 159 Cal.App.4th 273, 287.) Although the proposed amendment was in proper form, the real issue here is whether other factors supported the trial court's denial of the motion.
A trial court has wide discretion in deciding whether to allow amendment of any pleading, and its ruling in such matters will be upheld unless a clear abuse of discretion is shown. (Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 175-176.) Although 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, this policy should be applied only where no prejudice is shown to the adverse party. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487.) Moreover, "'"even if a good amendment is proposed in proper form, unwarranted delay in presenting it may— of itself—be a valid reason for denial."' [Citation.]" (Huff v. Wilkins (2006) 138 Cal.App.4th 732, 746, quoting Record v. Reason (1999) 73 Cal.App.4th 472, 486.) Appellate courts are less likely to find an abuse of discretion where the proposed amendment was "'offered after long unexplained delay ... or where there is a lack of diligence (Hulsey v. Koehler (1990) 218 Cal.App.3d 1150, 1159.) "'The law is well settled that a long deferred presentation of the proposed amendment without a showing of excuse for the delay is itself a significant factor to uphold the trial court's denial of the amendment. [Citation.]' [Citation.]" (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 613.)
Here, there was unexplained lengthy delay in seeking the amendment, which is itself a sufficient basis to uphold the trial court's denial. Not only that, but when the trial court asked for an explanation at the summary judgment hearing, plaintiff's counsel refused on the ground that such information was confidential. Plaintiff had apparently known that WCW was the true purchaser and the registered owner of the vehicle from the outset of this case, and yet for reasons unknown he pursued personal claims under the Song-Beverly Act and the Magnuson-Moss Act as though he individually was the purchaser or owner of the vehicle and as though he individually was the damaged party under the warranties. Plaintiff's complaint was filed in October 2008 and his motion to amend was not filed until February 2010, some 16 months later—at a time that was in close proximity to the trial date. At no point in this entire process did plaintiff ever offer an explanation for the false allegations in the complaint or for the lengthy delay in seeking the proposed amendment—and indeed, he refused to offer an explanation. It was only after defendant's summary judgment motion had, in effect, called plaintiff's bluff that plaintiff abruptly changed course, dropped the Song-Beverly claims and sought to add WCW as a plaintiff—yet even then plaintiff waited until February 2010 to actually file the motion to amend. Hence, not only was there long, unexplained delay, but all indications were that the original pleading was by design, rather than a good faith mistake, while there was no diligent effort to promptly file the motion to amend. Under such circumstances, it is clear that the trial court had adequate grounds to deny the motion.
As an additional factor supporting the denial, defendant asserted that it would have suffered prejudice if the amendment had been allowed. Plaintiff's failure to allege WCW as the true plaintiff (the real party in interest) and his long delay in seeking amendment forced defendant to expend time and effort on a motion for summary judgment raising the plaintiff's lack of standing to sue. Moreover, the hearing of plaintiff's motion to amend was scheduled for a date that was two weeks prior to the trial and after expiration of the discovery cut-off. Thus, if leave to amend had been granted it would have been too late for defendant to conduct further discovery related to the new party, WCW, or to challenge some or all of the claims of WCW by means of a summary adjudication motion. And even if a continuance of the trial date had been granted to permit a second motion under section 437c, that would mean that defendant would have to endure extensive further delays in this litigation. Under all of the circumstances, we think defendant's showing does reflect a measure of prejudice that could have easily been avoided if plaintiff had candidly alleged the correct owner and purchaser of the vehicle within a reasonable time.
On the record before us, we conclude the trial court's refusal to grant leave to amend was not an abuse of discretion. (See, e.g., Melican v. Regents of University of California, supra, 151 Cal.App.4th at p. 176 [unfair to allow the plaintiff to present a "'moving target'" to defeat summary judgment motion at last minute when basis for the proposed amendment was known for years, and no explanation provided for delay]; Record v. Reason, supra, 73 Cal.App.4th at pp. 486-487 [unwarranted, unexplained delay supported court's denial of proposed amendment at time of the summary judgment hearing when facts were known to the plaintiff since the time of injury]; Supervalu, Inc. v. Wexford Underwriting Managers, Inc. (2009) 175 Cal.App.4th 64, 84 [denial of proposed amendment at hearing of summary judgment motion upheld due to lack of diligence and proximity to trial].)
DISPOSITION
The judgment of the trial court is affirmed. Costs on appeal are awarded to defendant.
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Kane, J.
WE CONCUR:
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Gomes, Acting P.J.
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Dawson, J.