HART v. DODGE

Filed 2/26/07

CERTIFIED FOR PARTIAL PUBLICATION^*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Placer)

----

APPEAL from a judgment of the Superior Court of Placer County, Larry D. Gaddis, J. Affirmed.

Kinsey Consumer Law Center and Sharon L. Kinsey for Plaintiff and Appellant.

Kolar & Associates, Elizabeth L. Kolar and William N. Blasser for Defendant and Respondent.

In this action alleging violations of the Vehicle Leasing Act (Civ. Code, 2985.7 et seq. (VLA))^[1]and the Unfair

Competition Law (Bus. & Prof. Code, 17200 et seq. (UCL)), plaintiff Lisa Hart appeals from a judgment dismissing with prejudice her action against defendant Autowest Dodge for lack of evidence and from an order awarding attorneys fees. Plaintiff contends the trial court improperly denied leave to amend her complaint, improperly dismissed her lawsuit under an erroneous fact pleading standard, and improperly awarded attorneys fees under section 2988.9. In an unpublished portion of the opinion, we shall affirm the judgment. In the published portion of the opinion, we affirm the attorneys fees award.

FACTUAL AND PROCEDURAL BACKGROUND OF THE DISMISSAL OF PLAINTIFFS COMPLAINT

On December 1, 2003, plaintiff filed a complaint against defendant (and Wells Fargo, which is not party to this appeal), alleging defendant violated the VLA and the UCL. The complaint alleged as follows:

On April 27, 2000, plaintiff leased a 2000 Dodge Durango (Vehicle One) from defendant dealership for $430 per month. The next day, she discovered it did not have a third back seat, as represented. On April 29, 2000, plaintiff returned the vehicle to defendant and signed a new lease contract for a 2000 Dodge Durango vehicle identification number 1B4H628N4YF193039 (vehicle two) with a third back seat. Defendant said nothing about a change in price or monthly payments, but the new lease said monthly payments were $497, the agreed upon value of the vehicle was $32,250, and the listed registration fee was $457.

Defendant assigned the vehicle two contract to a lender. In December 2002, plaintiff was unable to maintain the monthly payments and voluntarily returned the vehicle to terminate the contract. The lender sold the vehicle and removed $11,816.83 from plaintiffs checking account pursuant to the set-off provisions of the lease contract.

The complaints first cause of action alleged VLA violations. Defendant allegedly violated section 2985.8, subdivision (c)(2)(A),^[2]by falsely stating that $29,613.69 was the value of the Vehicle agreed upon by Plaintiff. In truth, [defendant] had not mentioned a value to Plaintiff prior to preparing the Contract, had not explained the term agreed upon value to Plaintiff, and Plaintiff had not agreed to that value, or to any value. Defendant also allegedly violated section 2985.8, subdivision (d), when it failed to disclose in its lease with Plaintiff in at least eight-point bold type, above the space provided for the lessees signature and circumscribed by a line, the following notice [required by the statute]: (1) Do not sign this lease before you read it or if it contains any blank spaces to be filled in; (2) You are entitled to a completely filled in copy of this lease; (3) Warning - Unless a charge is included in this lease for public liability or property damage insurance, payment for that coverage is not provided by this lease. Defendant also allegedly violated section 2985.8, subdivision (e), when it failed to disclose in its lease with Plaintiff the following required disclosure, in at least eight-point bold type, on the first page of the contract and circumscribed by a line: THERE IS NO COOLING OFF PERIOD[] California does not provide for a cooling off or other cancellation period for vehicle leases. Therefore, you cannot later cancel this lease simply because you change your mind, decide[] the vehicle costs too much, or wish you had acquired a different vehicle. You may cancel this lease only with the agreement of the lessor or for legal cause, such as fraud. Defendant also allegedly violated section 2985.8, subdivision (f), when it failed to disclose in its lease with Plaintiff in at least eight-point bold type, the following: You have the right to return the vehicle, and receive a refund of any payments made if the credit application is not approved, unless nonapproval results from an incomplete application or from incorrect information provided by you.

In her VLA cause of action, plaintiff sought actual damages of $50,000, plus 25 percent of the total amount of monthly payments under the lease, not to exceed $1,000.

Plaintiffs other claim against this defendant was the third cause of action, alleging deceptive business practices under the UCL. The UCL claim incorporated the previous paragraphs by reference and alleged defendants practices of failing to disclose accurately the agreed upon value of leased vehicles, as well as misrepresenting the features of vehicles leased to consumers, were practices likely to mislead and deceive the general public and thus were unfair and deceptive practices under the UCL. (Bus. & Prof. Code,  17200 et seq.) The complaint sought orders enjoining the practices and directing defendant to disgorge ill-gotten gains and make restitution.

Trial was scheduled for April 4, 2005.

On March 15, 2005, plaintiff made an ex parte application for an order shortening time for hearing of various motions, including a motion for leave to file an amended complaint. The trial court denied the application for an order shortening time, on the ground that no good cause was shown.^[3]

Had the court granted an order shortening time to file a motion for leave to amend the complaint, and had the court granted the motion for leave to amend, plaintiffs proposed first amended complaint^[4]would have deleted the VLA allegations in the original complaint and would have substituted new allegations that (1) defendant violated section 2985.8, subdivision (a),^[5]by failing to include in a single document all of the agreements with respect to the obligations of lessor and lessee, and (2) defendant violated section 2985.8, subdivision (c)(2)(E),^[6]by failing to itemize by type and amount all items included in the gross capitalized cost (defined by 12 C.F.R.  213.2(f)) disclosed pursuant to Regulation M (as defined by  2985.7, subd. (e)). The amended complaint also would have added class action allegations on the UCL claim (in response to recent legal developments concerning standing in UCL cases).

On March 30, 2005, defendant filed a MOTION IN LIMINE TO EXCLUDE EVIDENCE THAT WILL WASTE THE COURTS TIME. Defendant sought to preclude plaintiff from arguing or presenting evidence (1) that the agreed upon value of the vehicle was not disclosed in the lease, and (2) that any required disclosures under the VLA were not made. Defendant argued evidence on those issues would waste the courts time, because plaintiff admitted in her deposition that the lease contract did contain the disclosures which the complaint alleged were omitted.

On April 4, 2005, the action came on for trial. Plaintiffs attorney asked the court for leave to amend the complaint to add allegations that defendant violated the VLA by (1) failing to include in a single document all of the agreements of the lessor/lessee with respect to the obligation of each party ( 2985.8, subd. (a)), and (2) failing to itemize items included in the gross capitalized cost. Specifically, plaintiffs attorney said:

On April 29th [2000] plaintiff signed an automation [sic] financial services theft protection program limited guarantee agreement, TPP agreement for vehicle two, which shows the selling price of $199 over price [sic]. On April 29th, 2000 in conjunction with her lease of vehicle two, plaintiff signed an Autowest certification of motor sales - sales distribution pursuant to Vehicle Code section 364. This document shows the installation for $199 on April 29, 2000. In conjunction with her lease of vehicle two, plaintiff signed an Autowest disclosure for a non-Chrysler parts service contract, which lists TPP glass as installed -- to be installed on vehicle two. According to the repair documents maintained by Autowest for vehicle two, Autowest installed the TPP glass etched on vehicle two on February 29, 2000. Bret Peterson, Autowest general manager, testified in his deposition that up through 2002 it was Autowests customer practice to automatically install the TPP glass on all new vehicles.

The defense objected to amendment of the complaint, arguing that amendment at this late date was highly prejudicial to defendant, which had relied on the pleadings as framed in the complaint, and the complaint said nothing about the theft protection program (TPP) or the VLA statute upon which the TPP claim would be based. Plaintiffs counsel gave no indication that the TPP was an issue until about two weeks before the first date set for trial (March 8). Defense counsel also said that no discovery was conducted with the plaintiff regarding the TPP.^[7] Defense counsel also argued (incorrectly) that the case of LaChapelle v. Toyota Motor Credit Corp. (2002) 102 Cal.App.4th 977 (LaChapelle), established that an automobile lessee can only state a VLA violation if the violation appears on the face of the lease.^[8] Defense counsel argued that plaintiff wanted to amend the complaint only because plaintiffs counsel was the attorney for the losing party in LaChapelle on the issue of gross capitalized cost, and after plaintiffs attorney lost the appeal (in October 2002) she decided she needed to come up with something better. The defense argued it was being blindsided on a matter that was never in issue and on which the defense had not retained an expert.

In reply, plaintiffs attorney said the TPP was a subject of a production of documents. He also said that, although LaChapelle, supra, 102 Cal.App.4th 977, may impact the original complaint, that was not the reason for the amended complaint. He said defendants representative testified in deposition that defendants practice was never to include the TPP cost in the lease contract.

When the trial court asked for an explanation as to why plaintiff waited so long to seek amendment, plaintiffs counsel said there was the need for additional discovery (the deposition of defendants general manager, Bret Peterson). Counsel said he sought the order shortening time on leave to amend within a few weeks of Petersons deposition.

The trial court denied leave to amend the VLA cause of action, on the grounds that we are up at the time of trial, and further discovery would be required. I do find it to be untimely at this time. Prejudice has been demonstrated, so it is denied.

The court also denied leave to amend to allege a class action suit.

Plaintiffs attorney then requested leave to amend the UCL cause of action to add allegations that defendant failed to display on the vehicle the supplemental price sticker required by law when the price is more than the manufacturers suggested retail price (MSRP) -- a matter which assertedly came to light during discovery.

Defense counsel responded amendment would be prejudicial. Defendants practice was to place supplemental stickers on vehicles that were marked up. This did not come out as a possible issue until the deposition of plaintiffs expert on the eve of trial.

The trial court denied leave to amend the UCL cause of action, because it just does not appear to me that it was originally contemplated. It wasnt in the complaint. I heard nothing to convince me that there was any evidence that this may be a cause of action other than some questions asked, and therefore, I find it untimely. The court reiterated denial of leave to amend to allege a class action.

After a recess to allow plaintiff and her counsel to talk, the trial court denied plaintiffs request to file the written proposed motion for leave to amend. The court asked if plaintiff was prepared to go forward with the jury trial, to which plaintiffs attorney responded:

Your Honor, as to the -- based on the Courts rulings -- based on the causes of action that are left in the complaint, and indulge me for [a] couple of minutes. I want to make sure I have this clear on there. Under the [VLA] of the following -- in the original complaint, the following violations were stated with respect to the failure to -- Im sorry, paragraph 24^[[9]]of the complaint, which is an eight point bold print type, do not sign the lease before you read it, or if it contained any blank spaces to be filled in in that particular paragraph, there is no evidence to proffer regarding that.

With respect to paragraph 25,^[[10]]which is a cooling-off period allegation, there are no facts in support of that based on the -- a copy that was eventually received of the actual complete copy of the lease, Your Honor.

Paragraph 26,^[[11]]you have the right to return the vehicle, receive a refund of any payment if the credit application is not approved. The same with respect to that, Your Honor, or unable [sic] to offer any facts in support of that.

With respect to paragraph 23,^[[12]]the dealer violated the Civil Code by falsely stating 29,613.69 was the value of the vehicle agreed upon by the plaintiff. In truth, the dealer not mentioning [sic] the value to plaintiff prior to preparing the contract or had not explained the term agreed-upon value to plaintiff. The plaintiff had not agreed to that value or any value. We believe that -- that there was not a specific value that was represented to plaintiff as to the vehicle. However, in the -- in the contract, there is a stated capitalized value of the vehicle. That contention was that that capitalized value of the vehicle included some other costs, such as the TPP. That would be the only potential allegation that would be left in regard to the original complaint, with respect to the stated value of the vehicle, which I think was the subject of defenses argument earlier, with respect to the case law in that regard. (Italics added.)

The trial court confirmed that plaintiff wanted to go to trial on the sole issue that she alleged the value of the vehicle was overstated by the cost of the TPP ($199 as stated in separate documents).

The trial court read from section 2985.8, subdivision (c)(2)(A), that itemization of gross capitalized cost includes the agreed-upon value of the vehicle as equipped at the time of the lease signing. The court suggested the vehicle as equipped would have included the price of the TPP etching.

Plaintiffs attorney responded: Well, as an insurance product thats related to the etching, its not included in the price. Its a separate, stated, $199 charge, and the fact is that the defendant may want to claim that thats a separate price over and beyond the agreed capitalized cost of the vehicle, but the fact is that they didnt mark that. My only concern with that allegation is based on your ruling that the complaint cannot be amended to include the etching issue and therefore, the motion in limine etching issues as to whether or not -- if I cant put in those etching issues based on the ruling, then, you know, I wanted -- then, I dont have any evidence to show -- to be able to prove [paragraph] 23, and so Im saying that in an abundance of caution, because I dont want to sit here and say Im ignoring your ruling on this and just going on my way.

The trial court said: Let me stop you, because now your argument is very circuitous. What the cause of action says here is that the dealer violated . . . Section 2985.8(c)2(a) [sic: (A)] by falsely stating that $29,613.69 was the value of the vehicle agreed upon by the plaintiff. Now, what I hear is that that price was false, because the $199 was included in that price. However, the code clearly states that the price must be the agreed-upon value of the vehicle as equipped at the time of the signing of the lease. So Im failing to understand your argument here with regard to how the $199 can factually support the allegation as made in the complaint.

Plaintiffs attorney said, Because the -- it doesnt include accessories, which would be if you had extra rims put on or some accessory that the customer says I want to add this on. On the other hand, what the -- the product that were talking about under Section E, which is the etching product. But in fact, what youre paying for is the product that reimburses you in the fact [sic] that the car is sold under Section E of the code, is not -- is included in that price which means that the price is inflated, and it doesnt really reflect the actual agreed-upon capitalization cost of the vehicle.

The court said this sounded like a question of law rather than fact.

Plaintiffs attorney said, Well, in other words, assuming that there was evidence proffered that there was $199 paid for the -- I keep calling it insurance. Its not quite an insurance policy, but for the added protection, and that added protection was, in fact, part of the capitalized cost price, because the evidence is that it was charged for because of the separate documents indicating there was a charge of $199, but that specific charge is not included in the capitalized cost, because its not an accessory. It would be the additional items that have to be all individually named, which was Subsection E of the code that was the part which was subject to our motion to amend.

The court said, it appears to be that the facts that were agreed to, at least in your point of view, that $199 was charged and was tacked onto the price, whether or not tacking that onto the agreed-upon value of the vehicle as equipped at the time of the signing of the lease is a violation of Section 2985.8 would be a question of law, because there is no disputed fact.

Plaintiffs attorney agreed it would be a question of law if there is no disputed fact.

Defense counsel then moved to dismiss the case for lack of evidence, because plaintiff admitted she had no evidence or facts to support her allegations.

The trial court said the $199, if an issue at all, was a question of law for the court, not for a jury, as was the UCL claim.

The trial court noted section 2985.8^[13]requires a separate statement itemizing gross capitalized cost, including premiums for insurance and service contracts, and there was a question as to whether or not the $199 TPP cost (which was included) was supposed to be included. The court asked if the $199 could be characterized as anything other than a service contract or insurance policy. Plaintiffs attorney said yes and thought it was subparagraph (E) -- a debt cancellation agreement. Plaintiffs attorney said the $199 was not for the TPP etching or a vehicle recovery system. The $199 is for a product that is tied into the etching system, which is sold, which the etching system in and of itself -- the etching in the car in and of itself . . . is not activated until they have purchased of [sic] the protection, which is $2,500 in the event the vehicle is stolen. The court said it was not going to interpret the policy.

The trial court asked if plaintiffs position was that the complaint in its current form was specific enough to include the $199 TPP issue. Plaintiffs attorney said yes but acknowledged the complaint said nothing about the matter.

The trial court said: I cant find it in there, Counsel. I cant find it in your complaint. On a plain reading of the complaint, which I read several times, it says that the dealer had not mentioned the value to plaintiff prior to preparing the contract, which is not the course [sic] any longer, had not explained the term agreed-to value, which is not before us, and had not agreed to that value or any value, which is not before us.

Plaintiffs attorney agreed the TPP issue was not in the complaint but was the subject of the motion to amend the complaint.

Defense counsel noted the UCL claim turned on the alleged VLA violations and moved to dismiss the UCL cause of action as well.

The trial court said, Based on the fact that I find really no notice of the $199 anywhere in the complaint as an issue, nor am I convinced that was it [sic] raised in discovery, and based on the concessions I think made by counsel for the plaintiff as to the rest of the alleged problems, there appears to be nothing left of the complaint for this Court or a []jury to look at. [] The motion to dismiss with prejudice is granted.

The judgment dismissing the case with prejudice was filed May 23, 2005, with notice of entry of judgment served on June 2 , 2005.

On August 1, 2005, plaintiff filed a timely notice of appeal from order granting the dismissal motion, the denial of plaintiffs motion to amend her complaint, and the granting of defendants motions in limine.

DISCUSSION

I. Appeal from Judgment

Plaintiff contends the trial court improperly denied leave to amend her complaint and improperly dismissed her complaint under an erroneous fact-pleading standard. We shall conclude plaintiff fails to show reversible error.

A. Denial of Leave to Amend

Plaintiff contends the trial court improperly denied her March and April 2005 motions for leave to amend her complaint. We will not address the March 2005 attempt to amend the complaint because, although plaintiff repeatedly makes the erroneous assertion that the trial court denied her motion for leave to amend in March 2005, the trial court did not deny a motion for leave to amend. Rather, the trial court denied plaintiffs ex parte application for an order shortening time to file a motion for leave to amend. On appeal, plaintiff presents no analysis or argument showing reversible error in the denial of an order shortening time. We therefore need not consider the matter. (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979; Cal. Rules of Court, rule 8.204.)

Nevertheless, plaintiff verbally moved to amend the complaint on the day the case was called for trial in April 2005. We shall consider whether the trial court improperly denied the oral motion.

The trial court has discretion to allow amendment of a complaint, even on the day of trial, if the defendant will not be prejudiced. (Code Civ. Proc., 473,^[14]576.^[15]) In reviewing a trial courts denial of leave to amend a complaint, we apply an abuse of discretion standard of review. (Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945.)

The courts power to permit amendments in furtherance of justice has been liberally construed. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 760 (Atkinson).) This position is clearly in accord with the modern theories of pleading, which would permit amendment in the discretion of the court unless an attempt is made to present an entirely different set of facts by way of the amendment. (Ibid.) 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 [citations], this policy should be applied only [w]here no prejudice is shown to the adverse party. . . . [Citations.] (Atkinson, supra, 109 Cal.App.4th at p. 761.) It is irrelevant that new legal theories are introduced as long as the proposed amendments relate to the same general set of facts. (Ibid.)

TO BE CONTINUED AS PART II.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

^* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of Factual and Procedural Background of the Dismissal of Plaintiffs Complaint and part I of the Discussion.

^[1]Undesignated statutory references are to the Civil Code.

^[2]Section 2985.8, subdivision (c), states in part, Every lease contract shall disclose all of the following: [] (1) All of the information prescribed by Regulation M [defined by 2985.7, subdivision (e), as any rule, regulation, or interpretation promulgated by the Board of Governors of the Federal Reserve System or an authorized official ( 2985.7, subd. (e)) under the federal Consumer Leasing Act (15 U.S.C. 1667-1667(e))] . . . [] (2) A separate statement labeled Itemization of Gross Capitalized Cost that shall appear immediately following or directly adjacent to the disclosures required to be segregated by Regulation M. The Itemization of Gross Capitalized Cost shall include all of the following and shall be circumscribed by a line: [] (A) The agreed-upon value of the vehicle as equipped at the time of signing the lease. ( 2985.8, subd. (c).)

^[3]Plaintiff incorrectly characterizes this as a denial of her motion for leave to amend the complaint, whereas it was in fact a denial of her request for an order shortening time to file a motion for leave to amend.

^[4]We granted plaintiffs request to augment the record with her proposed motion and proposed amended complaint. The declaration of plaintiffs attorney in support of the motion for leave to amend stated the amended complaint [d]eleted VLA allegations which are no longer valid or require clarification based on discovery [] Added allegation for violation of Single Document Rule [] Added allegation for failure to properly itemize Gross Cap Cost on lease contracts.

^[5]Section 2985.8, subdivision (a), provides: Every lease contract shall be in writing and the print portion of the contract shall be printed in at least 8-point type and shall contain in a single document all of the agreements of the lessor and lessee with respect to the obligations of each party. ( 2985.8, subd. (a).)

^[6]Section 2985.8, subdivision (c), states in part, Every lease contract shall disclose all of the following: [] . . . [] (2) A separate statement labeled Itemization of Gross Capitalized Cost that shall appear immediately following or directly adjacent to the disclosure required to be segregated by Regulation M. The Itemization of Gross Capitalized Cost shall include all of the following and shall be circumscribed by a line: [] . . . [] (E) Any charge for an optional debt cancellation agreement. ( 2985.8, subd. (c).)

^[7]The augmented record on appeal includes an excerpt of plaintiffs deposition dated December 15, 2004, in which she was asked whether the vehicle had theft etching, and she responded she knew nothing about it.

^[8]LaChapelle, supra, 102 Cal.App.4th 977, held a plaintiff could not pursue a VLA action against assignees of the lessor unless the violation appeared on the face of the lease agreement. (Id. at pp. 982-985.)

^[9]Paragraph 24 of the complaint alleged: Dealer violated Civil Code 2985.8(d), when it failed to disclose in its lease with Plaintiff in at least eight-point bold type, above the space provided for the lessees signature and circumscribed by a line, the following notice: (1) Do not sign this lease before you read it or if it contains any blank spaces to be filled in; (2) You are entitled to a completely filled in copy of this lease; (3) Warning - Unless a charge is included in this lease for public liability or property damage insurance, payment for that coverage is not provided by this lease.

^[10]Paragraph 25 of the complaint alleged: Dealer violated Civil Code 2985.8(e), when it failed to disclose in its lease with Plaintiff the following required disclosure, in at least eight-point bold type, on the first page of the contract and circumscribed by a line: THERE IS NO COOLING OFF PERIOD California does not provide for a cooling off or other cancellation period for vehicle leases. Therefore, you cannot later cancel this lease simply because you change your mind, decide[] the vehicle costs too much, or wish you had acquired a different vehicle. You may cancel this lease only with the agreement of the lessor or for legal cause, such as fraud.

^[11]Paragraph 26 of the complaint alleged: Dealer violated Civil Code 2985.8(f) when it failed to disclose in its lease with Plaintiff in at least eight-point bold type, the following: You have the right to return the vehicle, and receive a refund of any payments made if the credit application is not approved, unless nonapproval results from an incomplete application or from incorrect information provided by you.

^[12]Paragraph 23 of the complaint alleged: Dealer violated Civil Code 2985.8(c)(2)(A) by falsely stating that $29,613.69 was the value of the Vehicle agreed upon by Plaintiff. In truth, Dealers had not mentioned a value to Plaintiff prior to preparing the Contract, had not explained the term agreed upon value to Plaintiff, and Plaintiff had not agreed to that value, or to any value.

^[13]Section 2985.8, subdivision (c)(2), requires that lease contracts contain [a] separate statement labeled Itemization of Gross Capitalized Cost . . . [which] shall include all of the following . . . [] (A) The agreed-upon value of the vehicle as equipped at the time of signing the lease. [] (B) The agreed-upon value and a description of each accessory and item of optional equipment the lessor agrees to add to the vehicle after signing the lease. [] (C) The premium for each policy of insurance. [] (D) The amount charged for each service contract. [] (E) Any charge for an optional debt cancellation agreement. [] (F) Any outstanding prior credit or lease balance. [] (G) An itemization by type and agreed-upon value of each good or service included in the gross capitalized cost other than those items included in the disclosures required in subparagraphs (A) to (F), inclusive. ( 2985.8, subd. (c)(2).)

^[14]Code of Civil Procedure section 473, subdivision (a), provides: 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. [] (2) When it appears to the satisfaction of the court that the amendment renders it necessary, the court may postpone the trial, and may, when the postponement will by the amendment be rendered necessary, require, as a condition to the amendment, the payment to the adverse party of any costs as may be just. (Code Civ. Proc.,  473, subd. (a).)

^[15]Code of Civil Procedure section 576 provides: 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. (Code Civ. Proc.,  576.)