Good writing is rewriting . . . and rewriting again! Tom Holm demonstrates persuasive writing and editing techniques by revising and critiquing one of his own briefs

1. INTRODUCTION AND SUMMARY OF ARGUMENT

After the close of discovery and a mere five weeks before trial is set to begin, plaintiff Leo Julian (“Julian”) now seeks leave to amend his complaint to try to transform a negligent misrepresentation action in a Letter of Credit case into an action based on intentional fraud and claims for punitive damages and emotional distress.¹ As detailed below, Julian’s motion should be denied, and the trial should go forward on February 6, 1995 for the following reasons.

First, Julian’s motion for leave to amend should be denied because Julian’s proposed amended complaint is subject to general demurrer for failure to state a cause of action. California law is clear that a motion for leave to amend should be denied when the proposed amended complaint is subject to demurrer. 5 Witkin, California Procedure § 1125 (3d ed. 1985). Julian’s new claims for intentional misrepresentation and fraudulent concealment are subject to general demurrer because Julian has made judicial admissions in prior federal court actions, involving the very same Letter of Credit transaction, that he relied on the alleged misrepresentations of persons and entities other than VGNB, and that these misrepresentations induced him to authorize the release of the Letter of Credit funds.² (See Julian’s federal complaints attached as Exhibits A and B to VGNB’s Request for Judicial Notice.) Notably, Julian’s second federal complaint containing these admissions was filed on May 4, 1994, only a day after Julian filed his complaint in this action. Thus, Julian’s motion should be denied because he cannot state a claim against VGNB for fraud in that he cannot now plead, in direct contradiction to his federal complaints, that he relied on any alleged misrepresentation by VGNB when he authorized the release of the Letter of Credit funds.

Second, Julian’s motion for leave to amend should be denied as untimely. Julian’s own memorandum of points and authorities (“MPA”) admits that Julian himself was aware of all of the facts alleged in his Proposed Amended Complaint prior to the filing of his original complaint in May, l994. Julian states: “[A]ll of the facts alleged in the proposed First Amended Complaint are found in a combination of the original complaint, the deposition testimony of Dr. Julian in this matter, and the responses to interrogatories posed by Bank to Dr. Julian. (MPA, p. 5, ln. 5-9.) Despite having full knowledge of all of the facts alleged in the First Amended Complaint, Julian failed to seek leave to amend until seven months after filing his original complaint, after the close of discovery and on the eve of trial. California law is clear that “[a] long unexcused delay may be the basis for denying permission to amend pleadings, especially where the proposed amendment interjects a new issue, which may require further investigation or discovery procedures.” Rainer v. Community Memorial Hospital, 18 Cal. App. 3d 240, 258 (1971). Julian has offered no excuse for this delay. Thus, Julian’s motion is untimely and should be denied.

Third, the declaration of Astrid Rollo in support of Julian’s motion is woefully insufficient. Local Rule 9. 19 (e) of this Court requires that “if a motion for leave to amend is filed after the trial date is set, the supporting declaration must set forth in specific detail the reasons why the amendment is necessary and an explanation as to why the motion was not filed sooner. Pertinent dates regarding acquisition of the information must be stated.” Ms. Rollo’s declaration conspicuously omits stating when any new information supporting the amendment was acquired. The declaration also fails to state what new information was acquired. Specifically, the declaration fails to set forth even one fact that Julian learned during discovery that was unknown to him when he filed his original complaint. Because Ms. Rollo’s declaration fails to explain why the amendment was not made earlier, Julian’s motion must fail.

Fourth, Julian’s own cited authority does not support his motion for leave to amend. Julian relies on Honig v. Financial Corp. of Am., 6 Cal. App. 4th 960 (l992), to support his claim that even in “fast-track” cases, motions to amend should be liberally granted. However, the Honig court overturned the trial court’s denial of plaintiff’s motion to amend because the plaintiff in that matter alleged facts which occurred after plaintiff filed his original complaint. Id. at 966. To the contrary, Julian now seeks leave to amend his complaint to allege facts that were known to Julian in May of 1992. Honig in no way contradicts the principle that a trial court may properly deny a motion for leave to amend made on the eve of trial when no explanation has been offered for the party’s failure to amend earlier in the case.

Fifth, contrary to Julian’s assertions, his new fraud claims are drastically different from his negligent misrepresentation claim. To permit Julian to completely change the nature of his case at this late date would severely prejudice VGNB and seriously undermine the judicial process in this case. Julian’s new claims of fraud and emotional distress require discovery that VGNB previously had no notice was necessary. Additionally, as discussed above, VGNB will need to challenge Julian’s amended complaint on the pleadings. Because Julian was dilatory in making his motion, VGNB should not and cannot be foreclosed from challenging Julian’s amended complaint and pursuing any discovery regarding Julian’s claims. VGNB would thus be severely prejudiced if Julian’s motion were granted. However, should this Court decide to grant Julian’s motion, the trial date should be vacated or continued to allow VGNB to challenge Julian’s amended complaint and pursue additional required discovery.

2. JULIAN’S MOTION SHOULD BE DENIED BECAUSE JULIAN’S PROPOSED AMENDED COMPLAINT IS SUBJECT TO GENERAL DEMURRER

“It is of course proper to deny leave when the proposed amendment or amended pleading is insufficient to state a cause of action or defense.” 5 Witkin, California Procedure § 1125 (3d ed. 1985). For example, in Hayutin v. Weintraub, 207 Cal. App. 2d 497 (1962), the court upheld the trial court’s denial of plaintiff’s motion for leave to amend to add a cause of action for fraud holding that the trial court properly considered whether the proposed cause of action was properly pleaded. Id. at 506-07. Julian has admitted in prior federal pleadings (the first of which was originally filed almost two years before Julian filed his present action, and the second of which was filed on May 4, 1994 after dismissal of the original complaint for failure to prosecute) that he relied on the misrepresentations of persons and entities other than VGNB, and that these misrepresentations induced him to authorize the release of the funds pursuant to the Letter of Credit (See Julian’s federal complaints, attached as Exhibits A and B to VGNB’s Request for Judicial Notice). For example, in paragraph 86 of the original federal complaint attached as Exhibit A, Julian alleged: “In reliance on these representations by [the defendants in the original federal complaint], Plaintiff [Julian] was induced to, and in fact did, authorize the release of $1,579, 200 to Defendants Trimac International and BTB International.” Julian repeated these very same admissions in his second federal complaint, filed on May 4, 1994, only one day after the filing of Julian’s complaint in this action. (See ¶ 81 of second federal complaint, attached to VGNB’s Request for Judicial Notice as Exhibit B.) Because Julian has admitted that he relied on the misrepresentations of others not including VGNB, Julian cannot state a cause of action for fraud. Thus, this Court may properly deny leave to amend on this ground alone. Significantly, this Court may properly deny leave to amend when, as in this case, the parties proposed amendment contradicts an admission made in prior pleadings. Congleton v. Nat’l Union Fire Ins. Co.,189 Cal. App. 3d 51, 62 (1987).

3. JULIAN’S MOTION TO AMEND IS UNTIMELY

California courts have consistently held that a long, unexcused delay in seeking to amend pleadings warrants the denial of a motion to amend. In Lloyd v. Williams, 227 Cal. App. 2d 646 (1964), plaintiff brought an action to recover money she had paid pursuant to a contract alleging two causes of action for money had and received and an accounting. Id. at 647-48. Four months after the court had issued its pretrial conference order and five weeks before trial, plaintiff moved to amend her complaint to add three new causes of action, including an allegation of fraud. Plaintiff filed a similar motion a week before trial. Both motions were denied. Id. at 648. On appeal, the court affirmed the Superior Court’s denial of plaintiff’s motion to amend, reasoning “no explanation was offered for plaintiff’s delay. It was not offered to cure a technical defect, but instead added facts and substantially changed the theory of plaintiff’s case.” Id.

Similarly, in Moss Estate. Co. v. Adler, 41 Cal. 2d 581 (1953), the court held that defendant was properly denied leave to amend her answer to include fraud as a defense to plaintiff’s quiet title action twelve days before the date set for trial. The court reasoned that:

The trial court was thus presented with a situation wherein defendant sought to file an amended answer alleging a new defense based on different facts on the eve of the trial more than a year after the original answer was filed, and more than two months after she had notice of the date set for trial. Defendant was aware of the facts at the time the original answer was filed, but she gave no excuse for her delay. The original answer gave no inkling of the facts alleged in the proposed amended answer, and a continuance would have been required had leave to file had been granted.

Id. at 586 (emphasis added).

By his own admission, Julian knew of the facts underlying his proposed First Amended Complaint prior to filing his complaint on May 3, 1994. Julian has offered no excuse for his delay in alleging these new facts. Thus, Julian’s motion to amend is untimely and should be denied.

Julian’s new fraud claims are based entirely on representations allegedly made by VGNB to Julian in 1992. Thus, Julian knew the facts underlying his proposed fraud claims in 1992, two years before he filed his original complaint on May 3, 1994. Importantly, Julian admits in his MPA that “all of the facts alleged in the proposed First Amended Complaint are found in a combination of the original complaint, the deposition testimony of Dr. Julian in this matter, and the responses to interrogatories posed by Bank to Dr. Julian.” (MPA, p. 5, ln 5-9.) Thus, Julian knew all of the facts on which he bases his proposed new fraud claims before he filed his original complaint.

Furthermore, Julian also claims for the first time that he has suffered “emotional distress” as a result of the Bank’s actions. Again, VGNB’s actions which allegedly caused his emotional distress occurred in May of 1992. Moreover, Julian’s “distress” was particularly within Julian’s own knowledge. Julian is a medical doctor. Julian certainly did not become aware of his “distress” through discovery directed at VGNB. Thus, Julian could have and should have alleged this claim in his original complaint.

4. THE DECLARATION OF ASTRID ROLLO IN SUPPORT OF JULIAN’S MOTION FAILS TO EXPLAIN WHY JULIAN COULD NOT HAVE AMENDED HIS COMPLAINT EARLIER.

Julian offers only one declaration in support of his motion, the inadequate declaration of Astrid Rollo. The declaration of Ms. Rollo utterly fails to explain the reasons for Julian’s untimely motion. Local Rule 9.19(e) of the Los Angeles County Superior Court provides: “Motions to amend must be made promptly upon discovery of the need therefore. Usually a stronger showing is necessary when such motions are filed near the trial date. If a motion for leave to amend is filed after the trial date is set, the supporting declaration must set forth in specific detail the reasons why the amendment is necessary and an explanation as to why the motion was not filed sooner. Pertinent dates regarding acquisition of the information must be stated.” (emphasis added.)

Because Ms. Rollo’s declaration does not set forth any of the pertinent dates, it is wholly insufficient under all aspects of the Local Rules. Conspicuously absent from Ms. Rollo’s declaration are the dates that Julian learned information that was supposedly unavailable to him, and the content of this “newly acquired” information. Nowhere does Ms. Rollo state that Julian obtained any information regarding VGNB’s allegedly fraudulent behavior of which Julian was supposedly unaware when he initiated this action. Ms. Rollo states only that “the most recent information concerning Defendant VGN Bank’s fraudulent behavior was made known in the deposition of Michael Bringa, an individual who was deposed this week, on November 14 and 15, 1994. Mr. Bringa’s testimony and the testimony of Mr. Malcolm Franks (deposed on November 9, 1994) gives insight into the behavior of Defendant VGN Bank.” (Declaration, 5, p. 2-3.) This statement completely fails to articulate what information Julian supposedly learned from Mr. Bringa and Mr. Franks that Julian did not already independently possess. Ms. Rollo’s statement that the deposition of Mr. Bringa provided the “most recent information” is telling. At best, Ms. Rollo’s statement merely asserts that Mr. Bringa’s deposition testimony may have partially supported Julian’s own memory of the facts at issue in this matter.

The reasons why plaintiff did not include dates are clear: if plaintiff detailed his knowledge with dates, that detail would dramatically illustrate the basis for denial of the motion:

1. Plaintiff knew all facts alleged in the Amended Complaint when he filed his complaint in May, 1994, when he answered interrogatories in August, 1994 and when he was deposed in October, 1994;

2. Plaintiff knew all of the facts when the case was set for trial on October 3, 1994; and

3. There are no dates plaintiff can offer that warrant granting of this motion.

5. JULIAN’S CITED AUTHORITY DOES NOT SUPPORT HIS MOTION

Julian relies on two cases to support his motion, yet neither case supports Julian’s argument. In California Casualty Gen. Ins. Co. v. Superior Court, 173 Cal. App. 3d 274 (1985), the court stated that “if the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend.” Id. at 278. (Emphasis added.) The assumption underlying the rule in California Casualty does not exist in this matter. For the reasons discussed herein, Julian’s motion is both untimely and prejudicial to VGNB.

Julian also relies on Honig v. Financial Corp. of Am., 6 Cal. App. 4th 960 (l992). The situation in Honig is much different than the present matter. In Honig, plaintiff filed a complaint alleging, inter alia, fraud, breach of contract, and intentional infliction of emotional distress. Plaintiff was fired after he had filed his complaint. Plaintiff then moved to amend his complaint to include causes of action for wrongful termination and defamation. Id. at 963. The court held that the trial court abused its discretion by denying plaintiff’s motion to amend reasoning “[plaintiff’s] proposed amendments finished telling the story begun in the original complaint. The added assertions described the continuation of the events asserted in the initial pleading.” Id. at 966. The facts alleged by Julian occurred in l992, two years before the initial complaint was filed. Unlike the plaintiff in Honig, there is no reason why Julian could not have alleged his fraud claims in his original complaint.

6. JULIAN’S NEW CLAIMS AND PRAYER FOR RELIEF COMPLETELY CHANGE THE NATURE OF THE COMPLAINT AND PREJUDICE VGNB

1. Contrary to Julian’s Assertions, Julian’s New Claims and Prayer for Relief Completely Change the Nature of the Complaint

Julian’s surviving claim for Negligent Misrepresentation is based solely on the allegation that VGNB funded the Letter of Credit after allegedly negligently misrepresenting to Julian the nature and extent of documentary discrepancies. (See Julian’s original Complaint, ¶¶ 12, 13, 14, 15 and 25.) For example, in paragraph 15 of Julian’s Complaint, Julian alleges that: “Had Dr. Julian been informed by Bank about the non-conforming documentation, he would not have waived the discrepancies and would have insisted that no payment was due from Bank based on said documents.” That Julian based his Negligent Misrepresentation claim on documentary discrepancies is further made clear by his allegations in paragraph 25 of his Complaint. “On or about May 5, 1992, Bank represented to Dr. Julian that Bank had: (1) received documents in conjunction with a request for payment on Letter of Credit No. 30478; (2) examined said documents; and (3) found them to be in conformity with Letter of Credit No. 30478 but for three specified exceptions. None of these specified exceptions mentioned any other patent and non-conforming discrepancies in the documentation. . . .”

Contrary to Julian’s assertions, Julian’s new fraud claims are completely different from his Negligent Misrepresentation claim because Julian’s new claims are not based on alleged documentary discrepancies. Instead, Julian’s new claims are based on allegations that VGNB fraudulently coerced Julian to continue with the underlying transaction and fraudulently concealed its liability under the Letter of Credit to Julian. For example, in his Proposed Amended Complaint, Julian alleges in paragraph 43 that:

On several occasions between approximately April 30 and May 5, l992 in response to Dr. Julian’s voiced concerns as to whether the cigarettes were actually shipped on board the “Export Unbound”, as indicated in a bill of lading Bank showed Dr. Julian, Bank represented to Dr. Julian that Dr. Julian’s cigarettes were actually being shipped “under the table” and that Dr. Julian should continue with the transaction because Bank would pay on the letter of credit no matter what. Bank represented to Dr. Julian that it is nearly impossible for a person to forge a bill of lading . . .

Thus, given the drastically changed nature of Julian’s allegations, this Court should reject Julian’s baseless contention that Julian’s new fraud claims are mere extensions of his existing Negligent Misrepresentation claim.

2. Julian’s Proposed Amended Complaint Would Prejudice VGNB’s Defense

Julian now asserts, without a single citation to the record, that his two new causes of action for fraud, his new claim for emotional distress, and his new prayer for punitive damages do not prejudice VGNB’s defense even though discovery is now foreclosed. Julian’s claim defies all reason. Can plaintiff argue with a straight face that adding claims for intentional fraud, emotional distress and punitive damages – – where no such claims existed before – – does not change the nature of the case?

If Julian were allowed to allege fraud and emotional distress at this late date, VGNB would be required to mount a defense to those claims which differs markedly from its planned defense to Julian’s original claims. Based on Julian’s original complaint allegations, VGNB has focused its discovery on whether discrepancies existed in the documents, whether Julian had knowledge of those discrepancies, and whether any such alleged discrepancies caused Julian any damage. To defend against Julian’s new claims, it would be necessary for VGNB to conduct further discovery, which at a minimum, would include reopening Julian’s deposition to determine the facts upon which Julian bases these new claims. VGNB may also seek to depose other witnesses, some of whom are located abroad. Additionally, Julian’s emotional distress claim would necessitate a medical evaluation of Julian and the retention of an additional expert to opine on his claims. To be forced to reopen discovery on such a large scale would clearly prejudice VGNB.

Moreover, Julian’s late addition of a punitive damages claim severely prejudices VGNB’s prior discovery plan. VGNB is presently exposed to $1.5 million principal damage claim. If Julian were permitted to at amend his complaint, VGNB would face a $1.5 million compensatory damage claim plus the potential of an expansive, discretionary punitive damage award. If VGNB had been aware of Julian’s claims earlier, VGNB’s expanded potential liability may have merited more expansive discovery. For example, two witnesses with knowledge of Julian’s participation in the Letter of Credit transaction live overseas: Justin Marcian (Julian’s father-in-law) and Brun von Sutter (the agent who purportedly shipped the goods). Due to the untimely nature of Julian’s motion, VGNB is now foreclosed from deposing these individuals, even though VGNB’s increased potential liability may merit discovery regarding these individuals.

Finally, Julian has raised a claim for emotional distress. VGNB had no reason to, and did not, question Julian regarding his mental state and any resulting physical manifestations of his alleged “emotional distress.” Further, VGNB has not had an opportunity to subject Julian to a medical exam to verify his supposed distress. Without an opportunity to mount a defense to Julian’s emotional distress claim, VGNB would be severely prejudiced.

3. If this Court Does Grant Julian’s Motion, The Trial Date Should Be Vacated Or Continued to Enable VGNB To Challenge The Pleadings And Conduct Discovery on Julian’s New Claims
   

VGNB believes that Julian’s belated motion for leave to amend should be denied. However, out of an abundance of caution, if this Court should grant Julian’s motion, VGNB respectfully urges that this Court vacate or continue the trial date. Without citation to the record or any reasoning, Julian states in his brief and Ms. Rollo states in her declaration that a continuance is unnecessary. Such assertions, coming after Julian’s two new claims of fraud, Julian’s new claim for emotional distress, and Julian’s new claim for punitive damages, strain credulity. VGNB needs, and deserves, the time and opportunity to challenge Julian’s amended complaint on the pleadings and to explore Julian’s new allegations. As discussed above, Julian’s proposed amended complaint is subject to general demurrer. By delaying his motion, Julian should not be permitted to strip VGNB of its right to challenge the amended pleading. With regard to discovery, VGNB would need, at minimum, to retake Julian’s deposition to determine Julian’s reliance on the alleged intentional misrepresentations by VGNB, whether Julian’s damages were caused by Julian’s alleged reliance, and explore Julian’s claim of emotional distress. Additionally, VGNB would need discovery regarding Julian’s physical condition. Further, VGNB would need the opportunity to depose witnesses with knowledge of Julian’s state of mind prior to May 5, 1992: Justin Marcian and Brun von Sutter. Even if discovery were not already foreclosed, this discovery could not take place in time to allow VGNB to prepare for the February 6, 1995 trial date.

As a practical matter, given the February 6, 1995 trial date, VGNB would not have time to challenge Julian’s amended complaint before trial. Accordingly, the trial date should be vacated or continued if the Court grants the motion to amend.

7. CONCLUSION

For the foregoing reasons, VGNB respectfully urges that this Court deny Julian’s motion for leave to amend.

Dated: December 21, 1994

¹ On December 20, 1994, this Court granted VGNB’s motion for summary adjudication of issues and dismissed Julian’s causes of action for Breach of Contract and Negligent Disbursement.

² It is well settled that admissions in prior pleadings are admissible in subsequent judicial proceedings. Dolinar v. Pedone, 63 Cal. App. 2d 169, 176 (l944).

• I love our theme. We capture in one sentence that Julian’s motion is untimely and prejudicial.

• Legal analysis is hard enough as it is. Your job is to make the court’s job as easy as possible. One way to do this is to use the same terms to refer to the same thing. We fail to do that here. For example, in this paragraph we refer to Julian’s proposed amended complaint without initial caps. In the next paragraph, we refer to the same document with initial caps: “Proposed Amended Complaint.”
• To make the court’s job easier and maintain your credibility, use one term to identify the same thing throughout your analysis.

• Should our argument regarding the potential for a demurrer motion be the lead argument? We discussed the order of our arguments before filing our brief. I argued that we should place the untimeliness argument first because it was more straightforward and we had a compelling factual argument. The demurrer argument is more complicated and less common.
• My partner disagreed. He wanted to emphasize how drawn out this case would become if Julian’s motion were granted. He also wanted to emphasize that Julian had previously sued other parties for this same transaction.

• The sentence beginning with “Julian’s new claims” is a 62-word sentence. The content is good, but the content gets lost because the sentence is so long. Judges are like everyone else. They need resting places where they can absorb the information you offer. Periods and paragraphs give those resting places.
• Try to limit your sentences on average to around 20 words each.

• The last sentence in this paragraph is also unduly long. It’s 48 words. Smaller, bite-sized sentences allow the court to follow the logic of your analysis more easily.
• Also, this paragraph was 22 lines long in the original format, almost a full page. It only has five sentences, which is reasonable for a paragraph. But because two of the sentences are exceedingly long, the result is a long paragraph. The court needs more opportunities to rest and absorb your analysis.

• We used good thesis sentences throughout our introduction. Judges like clear signposts that identify where your argument is headed.

• “First Amended Complaint” is our third way of referring to the same document. This label tracks Julian’s label for his amended complaint. This label works too, but we needed to pick one term and use it throughout our brief.
• I was trained better than this and knew better. But the mistake still happened. One way to avoid this mistake is to immediately decide on defining key terms in your pre-draft outline and use those terms in your initial draft, rather than seeking to edit problems like this later.
• Editing is great for catching mistakes, and writing revisions are an inevitable part of the writing process, but making decisions up front helps you avoid basic mistakes like this one.

• Rules frame issues. If you’re going to raise a rule in your introduction, state it immediately after your thesis. A rule provides the foundation for the court to understand why the facts you’re addressing are relevant.
• Don’t hang on to your rule until the end of your argument. Instead, end your argument with a parenthetical that demonstrates how your argument parallels the logic of your mandatory authority. See the revised brief for examples.

• This paragraph has six sentences and was 20 lines long in the original format. In general, limit your paragraphs to four or five sentences each. Six sentences should generally be your upper limit. You’ll note in the revised brief I break this argument down into two shorter paragraphs.

• We perhaps underlined too much in this paragraph. If you underline too much, it feels like yelling and the emphasis loses its meaning.

• The highlighted sentence restates the argument in the prior sentence. While you may think that you’re adding emphasis, you’re actually taking away the court’s interest and ability to embrace your later arguments because you’re sapping your reader’s energy. If your page limits are tight—they often are—you also waste space that could be used to develop your authority or arguments.

• This paragraph is also six sentences, but five of the six sentences are short. Despite my general advice to keep paragraphs limited to four or five sentences, this paragraph is fine at six sentences.

• This paragraph is great. We developed our argument in five sentences.

• I love words. I love the word dilatory. But we could have found a simpler word. Make things easy on the court by using simple terms wherever possible. When I reworked this sentence in the revised brief, I avoided this word by eliminating the sentence’s passive construction. Had I not changed the sentence structure, I could have used a word like “late,” “slow,” or “lax.”

• This introduction was 3 ½ pages in its original format. I generally favor long introductions. Judges are busy. They also have short attention spans. Develop concise versions of your arguments to grab their attention when they have the most energy and focus.

• I aggressively researched all the issues in this brief. I didn’t find much authority on the demurrer issue. Witkin had a nice rule statement on this issue so we used it. But we supported the rule with mandatory authority so we weren’t just relying on a secondary source, even a source as authoritative as Witkin.
• We had a second case, Congleton, that we cited at the end of our argument. In my revised brief I moved Congleton to support the rule statement so I could reinforce my rule with more mandatory authority.

• The third sentence is 76 words, not counting the citation parenthetical. That’s far too long. Judges understand arguments better when they are presented in smaller, bite-sized chunks. Let the court rest between each step of your argument.
• Also, in general you should avoid putting information in parentheses in your analysis. Parentheses suggest tangential information. Legal memoranda provide essential information. If what you put in your parenthetical is tangential, take it out. If it’s essential, don’t place the information in parentheses.

• Note the two highlighted portions of this argument. They say the same thing. The second time the fact does meaningful work. It asserts that Julian was complaining about other parties’ intentional misrepresentations while at that same time he was only suing VGNB for failure to identify documentary discrepancies.
• That’s a great juxtaposition. We could have killed two birds with one stone by eliminating the earlier reference: 1) we would have made the earlier sentence at least somewhat shorter; and 2) we would have eliminated redundant information.

• The rule at the end of this paragraph works reasonably well here because it connects the law to the conclusion in this case. But this rule would be better placed after the opening sentence in this paragraph. Rules frame issues. Rules also demonstrate why the facts you’re addressing are relevant. In general, state rules early in your analysis, not late.

• This paragraph is horribly, horribly long. Judges need resting spaces. This paragraph was over a page long in its original format. We could have at least broken this argument down into two paragraphs. One could have stated our rules and authority; the second could have stated our argument.
• In my revised brief I used three paragraphs for this argument.

• Good headings have two parts: 1) identifying the conclusion you want the court to reach; and 2) demonstrating a reason that supports your conclusion. Your heading serves as a thesis sentence for your argument. If they are all done well, you provide a bullet-point outline of your analysis in your table of contents.

• Our opening sentence is good. We have a rule that frames the issue immediately.

• Many attorneys prefer to use parentheticals rather than more complete discussions of authority. I love parentheticals myself, as you’ll see in my revised brief.
• But fuller case discussions are often valuable. First, appellate courts usually rely on full descriptions of authority in their opinions, and trial courts rely on those opinions.
• Second, lawyers reason by analogy. Analogies need not be solely fact-based. They can also rely on parallel logic. By emphasizing the court’s reasoning in a case discussion, you can add more value in supporting your argument than even a well-crafted parenthetical can.
• For example, note the detailed facts we relied on in Lloyd that directly parallel Julian’s facts. Both cases involved the following: 1) a motion to amend made five weeks before trial; 2) the motion to amend changed what was basically a breach of contract action into a fraud action; 3) the motion alleged new facts; and 4) the plaintiff offered no explanation for the delay.
• By discussing Lloyd fully, we were able to rely on the parallel logic of the case in our argument.

• Moss Estate is another case where we can rely on parallel logic even though the facts are seemingly different. We have the following facts in common: 1) the trial date was set; 2) both motions were made to add fraud; 3) both parties were aware of the facts before they filed their original pleading; and 4) no explanation was provided for the delay.

• I researched and read all the cases in California involving motions to amend to find authority that was directly on point. We had this great authority, but we failed to use it in our argument because we never linked our authority to our argument. At minimum, we needed what I call a “thesis analogy” that identifies the parallel logic between our authority and our own situation. See the example in the revised brief.

• Use party admissions wherever possible in your brief. Similarly, avoid making admissions that damage your position. Here, opposing counsel attempted to argue that VGNB wasn’t prejudiced by the amended complaint, but in doing so gave us a great admission that Julian’s motion was untimely.

• Notice the quotations around “distress” throughout this paragraph. This has the subtle, or not-so-subtle, effect of undermining the credibility of Julian’s claim. We slightly mock the claim while using concrete facts to establish that Julian didn’t learn about his emotional distress during discovery.

• Beware of overburdening your analysis with excessive “glue” words. “Working” words add meaning to your sentences. “Glue” words hold a sentence together. (A big thank you and tip of the hat to Richard Wydick—my writing hero—for introducing the concept of “glue words.”)
• Glue words are words like the following.

• Of
• The
• A
• In
• So
• For
• That

• Glue words should comprise no more than 45% of your sentence, preferably less.
• In Section IV, the heading and the first two sentences have unnecessary glue words. For example, using the possessive could eliminate all the “of’s” in the heading and first two sentences. Please see my revised brief for alternative constructions of the heading and these sentences.

• We used several underlines before this section. In my view, the emphasis in this local rule was more valuable than in previous sections, yet they don’t have much force here because we used underlines so much previously.

• This is another desperately long paragraph. It contains eight sentences and took up 26 lines in the original format, almost a full page.
• Your reader needs resting places to stop and absorb the force of your argument. Paragraphs provide those resting points.
• I would start a new paragraph at “Ms. Rollo states only.” This allows your reader to linger a bit longer and absorb the previous sentences, which demonstrate that Ms. Rollo’s declaration didn’t identify any new information that Julian learned after he filed his original complaint.

• We used two colons in the same sentence. While that may be technically OK, it looks odd and leads to the question whether one can properly use two colons in a sentence. You don’t want the court focusing on that issue. Instead, you want the court the court focusing on your argument. I would add a period after “clear.” This gives me two short, clear sentences that lead into a great factual summary.

• Bullet points are a great way to convey information. They give the court a break from reading textual paragraphs, and stand out as something fresh and new. They also make the organization of your points transparent.
• I like the content of our bullet points, but we formatted them poorly. All text should be indented to the right of the bullet; the text in bullets should not wrap back to the left margin. The automated bullet point lists on your computer will do this for you. Don’t manually create bulleted lists.

• When researching, seek cases that give you the rule you’re looking for, but only use cases that don’t hurt you in other respects. Julian’s counsel was using this case for a very general proposition: motions to amend should be liberally granted even in “fast track” cases. I imagine there were other cases that stated this same rule. By using a case that was distinguishable on its facts, Julian’s counsel gave me an opportunity to further emphasize that Julian’s motion was untimely and that the court should discard the general rule in support of permitting amendments liberally.

• I like our detailed factual arguments in this section. But we are wasting opportunities to frame the issues with our rules. We were fighting an uphill battle in our opposition because motions for leave to amend are liberally granted. While we ultimately won, we should have framed a narrow rule that emphasized that leaves for motions to amend in this type of situation should not be granted.

• The first two sentences establish a lengthy thesis. But the argument that comes after the quote from the Amended Complaint is conclusory. This structure should be reversed. Keep your thesis statements concise. Develop your argument after you’ve established the factual foundation for it.
• I apply this advice in my revised brief below.

• As I noted in a previous comment, we failed to frame our argument with a rule. If we first state a principle that defines prejudice, our arguments will be even more compelling because we can tie our facts back to the rule.

• I know some legal writing experts and experienced practitioners like rhetorical questions. I agree that they have their place. But briefs should answer questions, not ask them. Our next paragraphs answer this rhetorical question. Moreover, by spending a paragraph on this, we’ve lost opportunities for advocacy elsewhere. I would rather have a rule and some case authority here instead of a question.
• Rhetorical questions should make the argument on their own. Our question doesn’t, so we should just make the argument.

• Note the highlighted text in these final three paragraphs. Our emotional distress argument is broken down into two parts. First, it’s the tail end of this argument. Second, we make a full-paragraph argument at the end of this sub-section. The court shouldn’t have to find the same conceptual argument in two separate places.
• Whenever I discuss argument structure, I always state two mantras for attorneys to internalize.

• “Give your reader one analytical task at a time.”
• “Say it once. Say it well. And never say it again.”

• Here, we’re forcing the court to consider the same analytical argument in two different places.
• In my redraft, I state the emotional distress argument after the fraud argument and before the punitive damages argument. This keeps my argument focused and coherent. The court only has one analytical task at a time. First, the court only has to understand my argument about the new claims and why they would prejudice VGNB. Second, the court only has to understand why our new damages exposure would prejudice our prior discovery plan.

• Organizational choices can impact the ease in which you make your fallback arguments. We argued strenuously for fourteen pages that the court should deny Julian’s motion. We had a variety of obvious and confidential reasons why we really didn’t want to face the fraud claims. We didn’t want to give the court a way to split the baby and give each party something, which courts are often inclined to do.
• But on our last page we explicitly gave the court an out and identified a way to split the baby: reopen discovery and vacate or continue the trial date.
• Our organization helped us here. Our fallback position came in the third sub-subsection. This arguably lessened the impact of our concession. The fallback position flowed naturally in our “prejudice” section.
• You’ll note that in my revised brief I reorganized the sections. One drawback to my revised organization is that my fallback section regarding reopening discovery and continuing the trial date sticks out a bit more than it does in here.

• In the sentence beginning with “Such assertions,” we use the Rule of Three for emphasis by repeating the phrase “new claim(s).”

• Note the highlighted portions of this sub-section. Here again we are giving the court two analytical tasks at a time. We reference the potential for a demurrer in this first paragraph and in our next paragraph. In between we discuss how VGNB would be prejudiced. We should have instead articulated the demurrer argument in its entirety once so the court could absorb our argument in full without being distracted by other issues.
• Also, the first paragraph is another desperately long paragraph. One way to make this paragraph shorter is to focus each paragraph on an analytically distinct argument: 1) VGNB needs more time for discovery; and 2) VGNB needs more time to challenge Julian’s amended complaint on demurrer.
• Another way to break up this long paragraph is to start a new paragraph at the sentence beginning with, “As discussed above.” The first paragraph would be a general thesis paragraph. (But one can reasonably question whether we need to devote so much space to restating Julian’s argument.) The second paragraph could discuss the need for additional discovery, while the third paragraph could discuss the need for time to challenge Julian’s amended complaint on the pleadings.
• Perhaps the reason we’ve written a few long paragraphs is because we needed to fit things in our page limit. Use better ways to comply with page limits than by writing unduly long paragraphs. 

My revised brief illustrates other means of ensuring your brief complies with the page limit.

After the close of discovery and a mere five weeks before trial is set to begin, plaintiff Leo Julian (“Julian”) now seeks leave to amend his complaint to try to transform a negligent misrepresentation action in a letter of credit case into an action based on intentional fraud and claims for punitive damages and emotional distress.¹ Julian’s motion should be denied for the following reasons.

First, Julian’s motion for leave to amend should be denied as untimely. Julian’s memorandum of points and authorities (“MPA”) admits that Julian knew all the facts alleged in his proposed amended complaint (the “Amended Complaint”) before he filed his original complaint in May l994: “all of the facts alleged in the proposed First Amended Complaint are found in a combination of the original complaint, the deposition testimony of Dr. Julian in this matter, and the responses to interrogatories posed by Bank to Dr. Julian.” (MPA, p. 5, ln. 5-9.)

Even though Julian already knew the facts alleged in the Amended Complaint, he failed to raise them in his original complaint. And Julian failed to seek leave to amend until seven months later—after discovery is closed and only five weeks before trial. Because Julian has offered no excuse for his delay, his untimely motion should be denied. See Lloyd v. Williams, 227 Cal. App. 2d 646, 648 (1964) (affirming trial court’s denial of plaintiff’s motion to amend her complaint for fraud because the plaintiff’s motion was filed after the trial court’s pretrial conference order and the plaintiff gave no explanation for her delay).

Second, Astrid Rollo’s declaration in support of Julian’s motion further shows that Julian’s motion is untimely. Local Rule 9.19(e) of this Court imposes substantive requirements, stating: “if a motion for leave to amend is filed after the trial date is set, the supporting declaration must set forth in specific detail the reasons why the amendment is necessary and an explanation as to why the motion was not filed sooner. Pertinent dates regarding acquisition of the information must be stated.” Ms. Rollo’s declaration conspicuously omits stating when Julian acquired new information and what new facts Julian learned. Because Ms. Rollo’s declaration fails to explain why Julian’s motion to amend was not made earlier, Julian’s motion must be denied as untimely.

Third, granting Julian’s untimely motion would severely prejudice VGNB’s defense. Julian’s new fraud claims are plainly different from his negligent misrepresentation claim. His negligent misrepresentation claim is based solely on VGNB’s alleged failure to identify documentary discrepancies relating to its letter of credit (the “Letter of Credit”), while Julian’s proposed fraud claims are based on alleged intentional misrepresentations by VGNB regarding the underlying sales transaction between Julian and third parties.

Discovery is closed, yet Julian’s new claims of fraud and emotional distress require crucial discovery that VGNB previously had no notice was necessary. Moreover, VGNB limited the extent of its discovery because it was only potentially liable for Julian’s original $1.5 million damage claim. It now faces a potentially greater damages claim that would justify more intensive discovery. Even if discovery were not foreclosed, VGNB could not complete its discovery in the five weeks before trial begins. Thus, VGNB would be severely prejudiced if Julian’s motion were granted. See Moss Estate. Co. v. Adler, 41 Cal. 2d 581, 586 (1953) (affirming the trial court’s denial of the defendant’s motion to amend her answer for fraud because her “original answer gave no inkling of the facts alleged in the proposed amended answer” and granting her motion would have required a continuance).

Fourth, Julian’s motion for leave to amend should be denied because his motion is futile. A trail court may deny a motion for leave to amend when the proposed amended complaint is subject to demurrer. 5 Witkin, California Procedure § 1125 (3d ed. 1985); see Hayutin v. Weintraub, 207 Cal. App. 2d 497, 506-07 (1962) (affirming trial court’s denial of the plaintiff’s motion for leave to amend because the plaintiff’s new fraud allegations were potentially unable to survive a motion for demurrer).

Julian’s Amended Complaint is subject to general demurrer for failure to state a cause of action. Julian’s Amended Complaint alleges that he relied on intentional misrepresentations by VGNB when he authorized the release of the Letter of Credit funds. But Julian admitted in two prior federal court actions regarding this same transaction that he relied on the alleged intentional misrepresentations of parties other than VGNB when he authorized the release of the Letter of Credit funds.² (See Julian’s federal complaints attached as Exhibits A and B to VGNB’s Request for Judicial Notice.) Because Julian has admitted that he relied on other parties’ intentional misrepresentations, he cannot successfully plead that he relied on alleged intentional misrepresentations by VGNB. Thus, Julian’s futile motion for leave to amend should be denied.

Finally, Julian’s own authority does not support his motion. Julian relies on Honig v. Financial Corp. of Am., 6 Cal. App. 4th 960 (l992), to support his claim that motions to amend should be liberally granted even in “fast-track” cases. But the court in Honig overturned the trial court’s denial of the plaintiff’s motion to amend because the plaintiff had alleged facts that occurred after the plaintiff filed his original complaint. Id. at 966. In contrast, Julian seeks leave to amend his complaint to allege facts that Julian knew in May 1992, two years before he filed his original complaint. Julian’s ability to find a favorable quote in a distinguishable case does not change the fundamental principle that a trial court may deny a motion for leave to amend made on the eve of trial when the plaintiff knew all the facts when he filed his original complaint and his amended complaint changes the plaintiff’s theory of the case.

Thus, VGNB respectfully requests that this Court deny Julian’s motion for leave to amend. However, should this Court grant Julian’s motion, the trial date should be vacated or continued to allow VGNB to challenge Julian’s Amended Complaint and pursue additional necessary discovery.

Courts may deny parties’ motions for leave to amend their pleadings when they are made after a long and unexcused delay, especially when the parties were aware of the facts underlying their proposed amendments at the time they filed their original pleadings. Lloyd v. Williams, 227 Cal. App. 2d 646, 648 (1964) (affirming the trial court’s denial of the plaintiff’s motion to amend her complaint for fraud because she originally filed her motion five weeks before trial but offered no explanation for her delay in filing the motion); Moss Estate Co. v. Adler, 41 Cal. 2d 581, 586 (1953) (affirming the trial court’s denial of the defendant’s motion to amend her answer for fraud because she knew the facts underlying her proposed amended answer at the time she filed her original answer and provided no explanation for her delay).

Julian’s motion is untimely because he knew all the facts underlying his Amended Complaint before he filed his original complaint in May 1994. Julian admits his prior knowledge in his brief, stating: “all of the facts alleged in the proposed First Amended Complaint are found in a combination of the original complaint, the deposition testimony of Dr. Julian in this matter, and the responses to interrogatories posed by Bank to Dr. Julian.” (MPA, p. 5, ln 5-9.)

Similarly, Julian now alleges that he suffered “emotional distress” because of VGNB’s actions. VGNB’s alleged actions that caused his emotional distress occurred in May 1992. And Julian’s “distress” was particularly within Julian’s knowledge because Julian is a medical doctor. He certainly did not become aware of his “distress” through discovery directed at VGNB. Thus, Julian could have and should have alleged this claim in his original complaint.

Discovery is closed. This case is set for trial five weeks from now. Julian has no excuse for his seven-month delay. Thus, Julian’s motion should be denied because it is untimely.

3. Astrid Rollo’s declaration supporting Julian’s motion fails to identify any new facts that Julian learned since filing his original complaint.

Julian offers Astrid Rollo’s declaration to support his motion, but Ms. Rollo’s declaration further displays that Julian’s motion is untimely. Local Rule 9.19(e) of the Los Angeles County Superior Court imposes substantive requirements on parties seeking leave to amend their pleadings after the trial date is set:

Motions to amend must be made promptly upon discovery of the need therefor. Usually a stronger showing is necessary when such motions are filed near the trial date. If a motion for leave to amend is filed after the trial date is set, the supporting declaration must set forth in specific detail the reasons why the amendment is necessary and an explanation as to why the motion was not filed sooner. Pertinent dates regarding acquisition of the information must be stated. (emphasis added.)

Ms. Rollo’s declaration does not satisfy Local Rule 9.19(e). Notably absent from Ms. Rollo’s declaration are the dates that Julian learned new information. She does not identify a single fact that Julian learned that he did not know when he filed his original complaint.

Local Rule 9.19(e) requires a stronger showing for the need to amend when leave is requested after the trial date is set. Julian has made no showing. Thus, Julian’s untimely motion to amend should be denied.

Julian’s surviving claim for Negligent Misrepresentation is based solely on his allegation that VGNB funded the Letter of Credit after negligently misrepresenting to Julian the nature and extent of documentary discrepancies. (See Julian’s original Complaint, ¶¶ 12, 13, 14, 15, and 25.) For example, in paragraph 15 of Julian’s original complaint, Julian alleges that: “Had Dr. Julian been informed by Bank about the non-conforming documentation, he would not have waived the discrepancies and would have insisted that no payment was due from Bank based on said documents.” Julian’s narrow focus on documentary discrepancies to support his negligent misrepresentation claim is amplified by his allegations in paragraph 25 of his original complaint:

On or about May 5, 1992, Bank represented to Dr. Julian that Bank had: (1) received documents in conjunction with a request for payment on Letter of Credit No. 30478; (2) examined said documents; and (3) found them to be in conformity with Letter of Credit No. 30478 but for three specified exceptions. None of these specified exceptions mentioned any other patent and non-conforming discrepancies in the documentation. . . .

In contrast, Julian’s new claims are based on allegations that VGNB fraudulently coerced Julian to continue with the underlying transaction and concealed its liability under the Letter of Credit to Julian. For example, in paragraph 43, Julian’s Amended Complaint alleges fraud regarding the underlying transaction:

On several occasions between approximately April 30 and May 5, l992 in response to Dr. Julian’s voiced concerns as to whether the cigarettes were actually shipped on board the “Export Unbound”, as indicated in a bill of lading Bank showed Dr. Julian, Bank represented to Dr. Julian that Dr. Julian’s cigarettes were actually being shipped “under the table” and that Dr. Julian should continue with the transaction because Bank would pay on the letter of credit no matter what. Bank represented to Dr. Julian that it is nearly impossible for a person to forge a bill of lading . . .

Julian’s new fraud claims plainly differ from his negligent misrepresentation claim because Julian’s new claims are not based on alleged documentary discrepancies. Julian’s original complaint focused on VGNB’s duties to him under the Letter of Credit. In contrast, Julian’s new fraud claims focus on VGNB’s alleged intentional misrepresentations regarding the underlying sales transaction between Julian and third parties. As an issuer of the Letter of Credit, VGNB had no duty to examine the facts regarding the underlying sales transaction. Thus, Julian’s new claims dramatically change the nature of his original complaint.

2. Julian’s untimely Amended Complaint would prejudice VGNB’s defense because it was filed after the close of discovery and on the eve of trial.

A motion to amend pleadings prejudices the opposing party when the motion is untimely and contains a new allegation of fraud, especially when the motion is made shortly before trial. Lloyd v. Williams, 227 Cal. App. 2d 646, 648 (1964).

For example, in Lloyd the plaintiff brought an action to recover money she had paid pursuant to a contract, alleging two causes of action for money had and received and an accounting. Id. at 647-48. Four months after the court had issued its pretrial conference order—and five weeks before trial—the plaintiff moved to amend her complaint to add three new causes of action, including an allegation of fraud. The plaintiff filed a similar motion a week before trial. Both motions were denied. Id. at 648. On appeal, the court affirmed the trial court’s denial of the plaintiff’s motion to amend because it was untimely and prejudiced the defendant: “[n]o explanation was offered for plaintiff’s delay. It was not offered to cure a technical defect, but instead added facts and substantially changed the theory of plaintiff’s case.” Id.

Similarly, in Moss Estate. Co. v. Adler, 41 Cal. 2d 581 (1953), the court held that the defendant was properly denied leave to amend her answer because her motion to amend was untimely and included new assertions of fraud. Id. at 586. In Moss Estate, the defendant originally sought to defend a quiet title action by contending that she had property rights to the water under a well on the plaintiff’s neighboring land. Twelve days before the date set for trial, the defendant sought leave to amend her answer to include fraud as a defense. The court affirmed the trial court’s denial of her motion for reasons equally pertinent to Julian’s motion:

The trial court was thus presented with a situation wherein defendant sought to file an amended answer alleging a new defense based on different facts on the eve of the trial more than a year after the original answer was filed, and more than two months after she had notice of the date set for trial. Defendant was aware of the facts at the time the original answer was filed, but she gave no excuse for her delay. The original answer gave no inkling of the facts alleged in the proposed amended answer, and a continuance would have been required had leave to file had been granted.

Id. (emphasis added.)

Similarly, Julian’s untimely motion was made shortly before trial, alleging new fraud claims where none previously existed. Julian’s untimely motion prejudices VGNB’s defense because VGNB is foreclosed from conducting further discovery. If Julian were allowed to allege fraud at this late date, VGNB would be required to mount a strikingly distinct defense to these new claims, a defense that VGNB had no notice was necessary. Relying on the allegations in Julian’s original complaint, VGNB focused its discovery on narrow issues like the following: 1) whether discrepancies existed in the documents; 2) whether Julian knew about those discrepancies, and 3) whether Julian suffered any damage from these alleged discrepancies.

To defend against Julian’s new claims, VGNB would at minimum need to reopen Julian’s deposition to determine the facts upon which Julian bases his new fraud claims. VGNB would likely also need to depose other witnesses with knowledge of the new facts Julian alleges. Some of these potential witnesses are located abroad, which would require VGNB to suffer additional expense and delays.

Julian has also raised a claim for emotional distress. VGNB had no reason to, and did not, question Julian regarding his mental state and any resulting physical manifestations of his alleged “emotional distress.” In addition to forcing VGNB to reopen Julian’s deposition, Julian’s new emotional distress claim would require VGNB to: 1) seek a medical evaluation of Julian to verify the delayed onset of his newly discovered distress, and 2) retain an additional expert to assess Julian’s mental state. Forcing VGNB to invest more time and money in such large-scale discovery—much of which could have been done earlier and more efficiently had VGNB been aware of the allegations—would severely prejudice VGNB.

Julian’s late addition of a punitive damages claim further prejudices VGNB’s prior discovery plan. If VGNB had been aware of Julian’s extensive damages claims earlier, it would have invested more resources in discovery. VGNB is presently exposed to a $1.5 million principal damage claim. If Julian were permitted to amend his complaint, VGNB would suddenly confront a potential expansive and discretionary punitive damage award. VGNB’s expanded potential liability would have merited more expansive discovery. For example, two witnesses with knowledge of Julian’s participation in the sales transaction live overseas: Justin Marcian, Julian’s father-in-law; and Brun von Sutter, the agent who purportedly shipped the goods. Because of Julian’s untimely motion, VGNB cannot depose these individuals even though VGNB’s increased potential liability would very likely require VGNB to seek documents and testimony from these individuals.

While Julian has asked to amend his complaint, he has not asked this Court to reopen discovery or extend the trial date. Julian’s untimely motion prejudices VGNB even if discovery were reopened, but Julian’s proposal is even more prejudicial because VGNB would have no opportunity to prepare a defense.

“It is of course proper to deny leave when the proposed amendment or amended pleading is insufficient to state a cause of action or defense.” 5 Witkin, California Procedure § 1125 (3d ed. 1985). Thus, a court may properly deny leave to amend when the plaintiff’s proposed amendment contradicts an admission made in his prior pleadings. See Congleton v. Nat’l Union Fire Ins. Co., 189 Cal. App. 3d 51, 62 (1987) (affirming the trial court’s denial of the plaintiffs’ motion to amend their complaint to allege they relied on the defendant insurer’s grant of an insurance policy because their proposed allegations conflicted with admissions they made in an earlier brief that proved they had not relied on the defendant’s grant of the insurance policy).

Julian has admitted in two prior federal pleadings that he relied on the intentional misrepresentations of parties other than VGNB when he authorized the release of the funds under the Letter of Credit. (See Julian’s federal complaints, attached as Exhibits A and B to VGNB’s Request for Judicial Notice). For example, in paragraph 86 of his first federal complaint—filed almost two years before Julian’s original complaint against VGNB—Julian alleged: “In reliance on these representations by [the defendants in the first federal complaint], Plaintiff [Julian] was induced to, and in fact did, authorize the release of $1,579, 200 to Defendants Trimac International and BTB International.” (See Exhibit A.) Julian repeated these admissions in his second federal complaint, filed on May 4, 1994—just one day after Julian filed his original complaint against VGNB for its alleged failure to identify documentary discrepancies under the Letter of Credit. (See ¶ 81 of Julian’s second federal complaint as Exhibit B.)

Because Julian has admitted that he relied on the intentional misrepresentations of parties other than VGNB, Julian cannot state a cause of action for fraud against VGNB. Thus, this Court may properly deny Julian’s leave to amend on this ground alone. See Hayutin v. Weintraub, 207 Cal. App. 2d 497, 506-07 (1962) (affirming the trial court’s denial of the plaintiff’s motion for leave to amend because the plaintiff’s new allegations of fraud were potentially unable to survive a motion for demurrer).

Neither of the two cases Julian cites in his opening brief support his request for relief. Julian cites California Casualty Gen. Ins. Co. v. Superior Court, 173 Cal. App. 3d 274, 278 (1985), for the unremarkable proposition that “if the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend.” (Emphasis added.) This rule is inapplicable because Julian’s motion is untimely and granting his motion would prejudice VGNB.

Julian also relies on Honig v. Financial Corp. of Am., 6 Cal. App. 4th 960 (l992), but the facts in Honig are strikingly different from the facts here. In Honig, the plaintiff filed a complaint against his employer alleging, among other things, fraud and breach of contract. Id. at 963. The plaintiff was fired after he had filed his complaint; he then moved to amend his complaint to include causes of action for wrongful termination and defamation. Id. at 964. The court held that the trial court erred by denying plaintiff’s motion, reasoning that: “[the plaintiff’s] proposed amendments finished telling the story begun in the original complaint. The added assertions described the continuation of the events asserted in the initial pleading.” Id. at 966.

Unlike the plaintiff in Honig, Julian has no new story to tell. The facts alleged in Julian’s Amended Complaint occurred two years before he filed his original complaint. Unlike the plaintiff in Honig, Julian has no excuse for not alleging his new claims earlier.

Julian’s belated motion for leave to amend should be denied. However, if this Court should grant Julian’s motion, VGNB respectfully urges this Court to reopen discovery and vacate or continue the trial date. Without citation to the record or authority, Julian’s brief and Ms. Rollo’s declaration assert that a continuance is unnecessary. Such assertions, coming after Julian’s two new claims of fraud, Julian’s new claim for emotional distress, and Julian’s new claim for punitive damages, strain credulity. VGNB needs and deserves the opportunity to explore the factual basis for Julian’s new allegations. But discovery is closed. Even if discovery were not already foreclosed, this discovery could not take place in time to allow VGNB to prepare for the February 6, 1995, trial date.

And Julian’s proposed amended complaint is subject to general demurrer. Julian should not be permitted to strip VGNB of its right to challenge his amended pleading by delaying his motion. VGNB would not have time to challenge Julian’s amended complaint before the trial date.

Julian knew all the facts alleged in his Amended Complaint two years before he filed his original complaint. Discovery is closed. Trial is near. Julian is out of time.

Julian’s motion to amend is untimely, would prejudice VGNB if granted, and is futile. Julian’s belated motion should be quickly denied.

Dated: December 21, 1994

¹ On December 20, 1994, this Court granted VGNB’s motion for summary adjudication of issues and dismissed Julian’s causes of action for Breach of Contract and Negligent Disbursement.

² It is well settled that admissions in prior pleadings are admissible in subsequent judicial proceedings. Dolinar v. Pedone, 63 Cal. App. 2d 169, 176 (l944).

• Typography experts (I’m quickly becoming one myself, to the delight of everyone who meets me at parties) recommend avoiding all-caps text for headings. Because headings should typically be full sentences, headings are too long for all-caps. Similarly, avoid initial caps. Initial caps are for titles; headings aren’t titles.
• Use bold rather than underlining to highlight your headings. Underlining text makes it harder to read because it takes up more white space in the document. It also makes certain letters that go below the baseline of the line harder to read, such as g, j, and y.

• While I’ve rearranged the organization of my arguments and framed my arguments somewhat differently, the length of my introduction hasn’t significantly changed. In general, I favor introductions that highlight each of the major arguments in my discussion section. Judges are busy; they get tired and lose focus just like the rest of us. I want to establish the basis for my arguments immediately when the judge’s attention and energy are at their best.

• Unlike in the original brief, I have defined the term “Amended Complaint” immediately so I can refer to it consistently and clearly throughout the rest of the analysis.

• Each of our arguments in our original brief were stated in a single paragraph. Our paragraphs were long and sapped our reader’s attention.
• In my revised introduction, I broke several of the arguments down into two paragraphs. This helps make the organization of the argument more transparent and gives the court more resting places. For my untimeliness argument, for example, I found a natural break between the factual foundation for the argument and the argument.

• One way to transition from one paragraph to another is to restate a portion of the last sentence in the previous paragraph in the thesis sentence of the new paragraph. I call this transitional device “moving from old to new.”
• In addition to being a great transitional device, this technique also allows you to restate favorable facts in a non-repetitive way. Here, for example, I get to restate that Julian already knew these facts when he filed his original complaint seven months earlier.
• This technique also works well in transitioning between sentences.

• Prefer shorter connectives to longer ones when you are showing the relationship between two sentences. For example, “and” is better to transition to the next point than “moreover” or “in addition.” Similarly, when you want to show contrast, prefer “but” or “yet” to connectives like “instead” or “nevertheless.”
• I started embracing “and” and “but” as transitional words a few years ago. I’m delighted by my decision and am never looking back.

• Arguments should always be tethered to authority, even when they’re offered in summary form in your introduction. I like to use parentheticals for this. Also, if I’ve researched well and write my parentheticals effectively, the parenthetical will demonstrate the parallel logic between my argument and my authority.

• I reframed this argument slightly in my revised brief. The original brief focused solely on Ms. Rollo’s declaration failing to comply with the local rules. That was fine, but it made it more likely that the court might view this argument as relating to a technicality.
• In this revision, I use this argument to further support my previous argument that the motion was untimely. My thesis and conclusion sentences both incorporate the contention that the motion isn’t timely. I also refer to Local Rule 9.19(e) as imposing substantive requirements that are consistent with the law regarding motions to amend.

• Typography experts discourage underlining because underlining takes up too much “white space” in your document. Instead, use italics for emphasis in your text because italics are easier to read.

• The original brief used three sentences to state what I said in one sentence in this paragraph’s penultimate sentence. I made this edit for two reasons. First, I didn’t think I needed three sentences to make the argument. With careful editing, I was able to condense the information into a short, 17-word sentence. When you edit, look for ways to turn full sentences into clauses, so long as your sentence is still short and readable after the edit.
• Second, one of my goals for the revision was to add more authority in the introduction and more rules in my discussion. I couldn’t just simply add these things because I would go over the page limit. Thus, I had to make my arguments shorter in places to free up room for these additions.

• In our original brief, we merely asserted that Julian’s new claims were different. Even in a (relatively) short introduction, avoid arguments by assertion.
• Instead, I took a bit of space to concisely argue why Julian’s Amended Complaint stated claims distinct from his original complaint. This took up a bit more space, but since prejudice is a compelling argument on its own and one that reinforces the timeliness argument, I wanted to give the argument its due. This factual foundation also makes it easier to establish my prejudice argument in the following paragraph.

• I again support my argument with a parenthetical of mandatory authority that demonstrates the parallel between my argument and precedent.

• In the original brief, this demurrer argument was one paragraph and comprised 18 lines in this post’s format. In my revision, this argument still has 18 lines, but it is broken into two paragraphs. The paragraph break enables the court to take a quick mental rest during the argument.
• Note the natural break between the paragraphs. The first paragraph contains the thesis, rule, and supporting parenthetical. The second paragraph contains the argument.

• Note the sentence structure in this argument. I have one lengthy 37-word sentence, but all other sentences are approximately 20 words or less. In contrast, in the original brief one sentence for this argument was 62 words long, while another was 48. The revised argument is clearer, in part because concepts are broken down into more digestible chunks.
• Note also that the more direct sentence structure permits me to make my argument in fewer lines. This gives me space to add a supporting parenthetical that identifies the parallel between my authority and my argument.

• Our original brief had a little bit of snark. Here I add some more snark at the end of this paragraph. While I generally try to avoid snark, I think it works here. The final sentence advances my theme that Julian is grasping at straws. I previously contended that Julian has no excuse for his extensive delay. I amplify this here by noting that not only can he not identify supporting facts, he can’t identify supporting law.
• Still, I feel a bit queasy about the snark. In general, the more you can state your contentions in an understated manner, the more effective those arguments will generally be. You’ll look like a straight shooter who doesn’t have to rely on personal attack to support your contentions.

• Note the heading structure. It provides a conclusion and a reason for the conclusion. As noted in the original brief’s annotations, headings structured in this manner provide a nice bullet-point outline of your analysis in your brief’s table of contents.
• This heading could be critiqued as being too general. If you wanted to add factual detail, you could frame this heading in a manner similar to the following: “Julian’s motion to amend should be denied because Julian knew all the facts underlying his Amended Complaint when he filed his original complaint seven months earlier.” Or “Julian’s motion to amend is untimely because he was aware of the facts at the time he filed his original complaint and did not move to amend until after discovery was closed.”
• I prefer the first of these suggested headings because it better tracks my rule. I’m comfortable with my actual heading because it’s short and to the point.

• I argued that we should put our untimeliness argument first when we were writing our original brief. I felt that the untimeliness and prejudice issues were more common and intuitive than the demurrer argument, which made it more likely the court would rule on one or both of these issues. This revised brief reflects how I would have structured our original brief if my suggestion had been followed.
• As with most briefing decisions, there are costs and benefits to these types of organizational choices. As discussed above, I like that I get to emphasize the two most common reasons for denying motions for leave to amend in our first three discussion sections. I’ll identify one cost to this organizational decision in a later section of this brief.

• Use rules to frame your issues. You may wish to frame the issue broadly or narrowly depending on your position. Here, I’m trying to frame the rule narrowly. Most motions for leave to amend are granted, and the rules generally favor courts granting parties leave to amend. Thus, I have to narrow the issue to give my client a better shot at winning.
• Here, I try to frame the rule in terms of seeking motions to amend when: 1) there’s a long delay and 2) the plaintiff knew the facts before filing his original motion. These facts parallel my argument and suggest that leave shouldn’t be granted.

• I used full case discussions in our original brief for this argument. I used parentheticals here so I could use full case discussions in my prejudice section. I felt the prejudice section needed more help from case authority than this section where the argument was a bit easier to establish.
• Ideally, I would use cases other than Lloyd and Moss Estate for this section so I could bring more authority to bear in this brief and have holdings that were more explicitly limited to the untimeliness issue. However, at least as of 1994, there weren’t other good cases with on-point facts that had holdings based on untimeliness alone. I tried to massage this issue by just limiting the parentheticals to the untimeliness issue.

• As I noted in my annotations for the original brief, avoid making admissions in your papers that can be used against you. Plaintiff’s counsel was trying to establish an argument that our client wasn’t prejudiced by the new claims in the Amended Complaint. This contention certainly helped that argument, but at the expense of giving us a clear admission regarding our untimeliness argument.
• We won this opposition on the untimeliness issue. I don’t know what facts ultimately led the court to its conclusion, but Julian’s admission certainly didn’t help.

• Note that my argument in this section is much shorter than in our original brief. I did this in the following ways. First, I wrote a single thesis sentence rather than a full thesis paragraph to introduce my argument.
• Second, while I liked the original brief’s emphasis that Julian knew the facts two years before filing his original complaint, I had to shorten my arguments in places to provide space for other additions. Thus, I eliminated that emphasis to focus on my core argument: Julian knew all the facts underlying his amended complaint at the time he filed his original complaint.
• Third, I eliminated the intermediate links back to our conclusion that existed in our original brief. Instead, I wrote a short, two-line paragraph that summarizes the basis for our contention. Two sentences in this final paragraph are under ten words; the other two sentences are exactly ten words. These short, clear sentences draw attention to the obvious problems with Julian’s delay.

• Compare this heading to the heading in section IV, the original heading for this argument. By avoiding all-caps, my heading is two lines rather than three. The heading is also much more readable than the underlined, all-capped text in the original.

• I eliminated some excess glue words in the original brief by using the possessive. Compare this sentence to the first and second sentences of Section IV in the original brief. I turned two sentences comprising 31 words into a single, 20-word sentence containing only five glue words. This is another example of finding ways to turn full sentences into clauses during your edits.
• In one of my earlier drafts of this revised brief, the opening portion of this sentence was “Julian offers Astrid Rollo’s declaration in support of his motion.” As I was writing this annotation, I rewrote this sentence to eliminate a glue word by changing “in support of his motion” to “to support his motion.” This clause now has only two glue words rather than three.
• This example suggests you should create an editing checklist for writing problems to look for in your edits. I only caught this because I was focused on the “glue words” concept in the moment I was writing the sentence.

• Note the explicit contrast, which is identified in the yellow highlights. By using parallel construction and short sentences, I highlight the extent to which Ms. Rollo’s declaration fails to meet the standard.

• This argument is also much shorter than in the original brief. First, I needed to edit some arguments down to free up space for my other changes, such as adding parentheticals, articulating narrow rules, and adding paragraph breaks.
• Second, I don’t lose much in writing a shorter argument. We picked apart Ms. Rollo’s declaration in the original brief. I think that added value, as did the bullet points that ended the argument. But in this revised brief the second paragraph directly applies the rule, which makes the same argument more pointedly and concisely.

• I removed the initial caps from my sub-headings, using normal sentence capitalization instead. The bold italics make the heading stand out.

• I had an organizational choice here. As I’ve stated previously, I like framing issues with rules. I considered placing the rule I have in section IV.B. at the beginning of section IV.
• I decided against that because I would then have needed to combine sections IV.A. and IV.B. into a single section. That would have led to a very lengthy sub-section. It also would have led to having two case discussions and the argument that is currently in section IV.A. come before my prejudice argument. My prejudice argument is the key argument in this section. I didn’t want it trailing so much other information before I made the argument.
• Instead, I let my argument speak for itself in section IV.A. and concretely framed my prejudice argument with a rule in Section IV.B.

• When offering a longer quote, use a substantive introduction that summarizes what the quotation provides or how it supports your argument.
• Here, this introduction emphasizes that Julian’s original complaint focused on documentary discrepancies to establish his negligent misrepresentation claim.
• This technique helps ensure that your longer quotation gets read; it also helps ensure that your quotation’s meaning is understood because you’ve provided a thesis for the quotation.

• As noted above, motions to amend are liberally granted. Thus, I again need to frame a narrow rule to help support my contention that prejudice would result from granting the motion in this situation.
• Structure your rule to parallel the best facts in your argument. This helps support your argument before you ever make it. Note that my rule relies on three great facts that support my argument.

• The motion is untimely (established in Sec. II.);

• The amendment contained an allegation of fraud where one didn’t exist previously; and
• The motion occurred shortly before trial.

• I would have loved to have written a rule relating to the trial date being set, but Lloyd doesn’t explicitly support that rule.

• I know some very talented lawyers disagree with me on this, but I like to use full case discussions to support my arguments when the cases give me parallel facts and reasoning, even if the facts are somewhat different.
• Ultimately, lawyers rely on cases because cases provide parallel reasoning that lawyers can use to support their arguments. That parallel reasoning is effective even where the facts are somewhat different, so long as you frame the reasoning in a manner that supports your argument.
• Here, while the facts in the two cases are somewhat different, I frame the facts and reasoning in a broad manner that allows me to link into the logic of the case. If done well, a good case discussion will almost make your argument for you. That gives you a heftier foundation for your argument than a mere parenthetical can provide.
• I happen to quote the court’s reasoning in this case discussion. However, you can frame the court’s reasoning in your own words to establish a clear parallel to your argument, provided you don’t misstate the basis for the court’s decision.

• When you do a complete case discussion, state the facts of the case first for the following reasons. First, you give your reader only one analytical task at a time. The court will understand the facts of the precedent case before you ask the court to understand the reasoning and holding of the case. This is easier than forcing the court to understand the facts of the case concurrently with your summary of the court’s reasoning and holding.
• Second, you can typically state the court’s reasoning and holding more concisely and clearly because you have the complete factual context of the case to refer back to.

• Note the parallel facts between this case and Julian’s situation.

• The original complaint was essentially for breach of contract, while the amendment was for fraud.

• The motion for leave to amend was made five weeks before trial.

• Note the parallel logic between this case and Julian’s situation.

• No explanation was offered for the delay.

• The amendment not offered to cure a technical defect.

• The amendment alleged new facts and changed the theory of the case.

• One way to transition between cases is to use what I call a “transition holding.” It’s a particular example of the “moving from old to new” transitional device I discussed above.
• Your transition holding works by stating the holding broadly and incorporating parallel language from your rule into the holding. In addition to helping you write an effective transition, you further reinforce your rule.

• I did a modified version of the technique for providing a thesis for a long quote that I discussed earlier. I don’t state a thesis for the quote, but I do contend that the logic of case directly applies to Julian’s situation.

• Note again the parallel facts and logic.

• The moving parties knew all the facts alleged in their amended pleadings at the time they filed their original pleadings.
• The amended pleadings alleged fraud.
• The amended pleadings contained new facts of which the opposing party had no notice.
• The trial date was set.

• I link my argument to authority in a simple thesis that tethers my argument to the logic of the cases.

• Note the paragraphing. In addition to giving your reader resting places, paragraphs can also make the organization of your argument transparent. This argument is four paragraphs.

• Paragraphs 1 & 2 relate to prejudice from Julian’s new fraud claims.

• Paragraph 3 relates to prejudice from Julian’s emotional distress claim.

• Paragraph 4 relates to prejudice from VGNB’s increased damages exposure.

• An added bonus to paragraphing is that—assuming you respect your thesis sentences—your arguments will focus on one analytical issue at a time. This adds clarity to multi-issue arguments.

• I love the dash. A dash can be used to offset a phrase or clause that you wish to highlight in your argument.

• As I stated in my comments on the original brief, avoid relying on secondary authority in your rules. If a dearth of authority forces you to rely on secondary authority for your rule, support that rule whenever possible with citations to mandatory, primary authority.
• Note here that I used Congleton to state a rule that frames the issue and applies directly to my facts.

• I chose a parenthetical here to support my rule. The facts and reasoning of Congleton didn’t obviously parallel my facts. Thus, I framed a parenthetical to massage those issues and stated the court’s holding in a light favorable to my client’s position.

• Parentheticals generally work best in two places when you use them to support your argument: 1) to support a rule statement; and 2) at the end of an argument. If you use a parenthetical to end your argument, frame the parenthetical to parallel the facts and reasoning in your argument.

• I added just a small amount of literary flair to emphasize that the general rule regarding motions for leave to amend does not apply. The phrase “unremarkable proposition” conveys that opposing counsel can’t find concrete authority to support their argument.

• Note the more forceful distinction in this revision. First, I begin a new paragraph, which highlights the transition to my argument. Second, the distinction comes immediately, rather than in the second sentence of the argument, allowing it to serve as a thesis for the argument. Third, by using the phrase “new story,” I directly tie into the basis for the court’s holding in Honig.

• This is one weakness in my new organizational scheme. Our fallback position in the original brief was in Section VI.C. It was a bit more hidden as the third subsection. Here, my organizational scheme forced me to add this as its own major section. I had principled reasons for my decision, and I think the benefits outweigh the costs, but this is a cost.
• The important thing is that I considered the costs and the benefits of my strategic choices. Reasonable lawyers may differ on how they balance the costs and benefits of their decisions. The key is to meaningfully identify and resolve these issues.

• Note the short arguments. In this post’s format, this section is now only 14 lines, compared to 23 lines in the original brief. I already made my points before. I don’t need to belabor them. I merely need to refer to them to establish my contention that if the court granted the motion, providing the time and opportunity to conduct additional discovery was appropriate.

• Take advantage of every opportunity for advocacy. While many attorneys just throw in a pro forma sentence in the conclusion, make your conclusion work for you.
• Here I use two short paragraphs to carry my opening theme through the entire brief. That’s especially helpful here since I just gave the court an opportunity to split the baby in the previous section.
• I used a small literary device to contrast Julian’s dilatory actions to the immediate action I’m asking the court to take.