Filed 10/13/15 Oblas v. Robertson CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

JEFFREY L. OBLAS, Individually and 

as Trustee, etc., et al.,

Cross-complainants and Appellants,

v.

WILLIAM ROBERTSON,

Cross-defendant and Respondent.

 B253536

 (Los Angeles County

 Super. Ct. No. LC081015)

APPEAL from a judgment of the Superior Court of Los Angeles County, 

Huey P. Cotton, Jr., Judge. Reversed with directions.

Bergman Law Group and Daniel A. Bergman for Cross-complainants and 

Appellants.

Schaffer, Lax, McNaughton and Chen and Russell A. Franklin for 

Cross-defendant and Respondent. 

____________________________
2

INTRODUCTION

Jeffrey L. Oblas and Heidi Adams, individually and as trustees of the Cabo 

Investment Trust, appeal from a judgment in favor of William Robertson after the trial 

court granted Robertson’s motion for summary judgment on their cross-complaint against 

him. Oblas and Adams argue that the trial court erred by failing to state its reasons for 

granting the motion for summary judgment, and that triable issues of material fact 

regarding their fraud and negligent misrepresentation causes of action preclude summary 

judgment. They also challenge the trial court’s denials of their motion for leave to file a 

sixth amended cross-complaint and their motion for reconsideration of that ruling. We 

reverse the judgment because there were triable issues of material fact on the fraud and 

negligent misrepresentation claims. We also conclude that the trial court properly denied 

the motion for leave to file an amended cross-complaint and the motion for 

reconsideration.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Design and Installation of the Landscaping and Pool

In May 2004 Oblas and Adams entered into a written agreement to purchase a lot 

and build a home in a planned-development community known as The Oaks of 

Calabasas. The developer was New Millennium Homes, LLC. 

On August 3, 2004 Louis J. Malone, chief executive officer of New Millennium, 

wrote a letter to Oblas and Adams stating that New Millennium had entered into an 

association with Harper Pools & Landscapes that would allow purchasers of homes in the 

community to start landscaping their properties and installing pools before the close of 

escrow. Malone stated that Harper Pools had a fine reputation for 27 years and that Billy 

Harper had already completed or was in the process of designing more than 40 projects 

within The Oaks of Calabasas. Malone stated that, by selecting Harper Pools as their 

landscape contractor, Oblas and Adams could “significantly reduce the time after the 
3

close of escrow for your total project completion,” and that they could begin the 

installation before the close of escrow only if they hired Harper Pools. 

On October 8, 2004 Billy Harper, whose true name is William Roberston and who 

was president of Harper Pools, wrote a letter to Oblas and Adams referring to Malone’s 

August 3, 2004 letter and representing that Harper Pools had more than 27 years of 

experience. Harper stated that by hiring Harper Pools homebuyers could commence the 

design review process before the close of escrow and that New Millennium would assist 

Harper Pools “in expediting your construction approvals.” Harper stated that, after 

obtaining those approvals, Harper Pools could begin the hardscape installation while the 

home was still under construction, which would allow purchasers to complete their 

landscaping and pool installation months earlier than they otherwise would be able to do. 

Oblas and Adams hired Harper Pools in October 2004 to design the landscaping 

and pool for their lot, and on February 8, 2005 signed a contract for installation. 

Robertson signed the contract on behalf of Harper Pools. Harper Pools substantially 

completed the work, and the City of Calabasas gave final approval of the construction. 

On August 3, 2006, however, The Oaks of Calabasas Homeowners Association refused 

to give final approval of the construction. 

B. The Complaint and Cross-complaint

On April 4, 2008 the Homeowners Association filed a complaint against Oblas 

and Adams alleging that the construction of landscaping and hardscape on their lot 

deviated from the plans and specifications approved by the Homeowners Association and 

included excavation of a slope on common area property. The Homeowners Association 

alleged causes of action for breach of covenants, nuisance, injunctive relief, and trespass. 

On May 15, 2008 Oblas and Adams filed a cross-complaint against the 

Homeowners Association, New Millennium, Harper Pools, and Wells Fargo Bank, N.A. 

They alleged causes of action for breach of the construction contract with Harper Pools, 

fraud, negligent misrepresentation, conspiracy, slander of title, promissory and equitable 

estoppel, and injunctive relief. 
4

After a series of demurrers, amended cross-complaints, and an appeal,

1 Oblas and 

Adams filed a fifth amended cross-complaint on April 16, 2013 alleging the same seven 

causes of action against the Homeowners Association, New Millennium, and Harper 

Pools.2 Oblas and Adams alleged that Harper Pools had failed to complete the work 

properly. They also alleged that New Millennium and the Homeowners Association had 

entered into an agreement on August 2, 2004 making Harper Pools the preferred 

contractor for the installation of landscaping and pools at The Oaks of Calabasas and 

allowing the work to commence before the close of escrow.

Oblas and Adams based their fraud, negligent misrepresentation, and conspiracy 

causes of action on three misrepresentations. First, Malone falsely stated in his August 3, 

2004 letter that if Oblas and Adams hired Harper Pools, the construction would be 

completed and they would obtain final approval. Second, Robertson falsely stated in his 

October 8, 2004 letter that Harper Pools would assist in “significantly speeding up” the 

approval process, including obtaining final approval of the construction.3 Third, 

Robertson falsely stated orally that he “had a direct line to obtaining final approval of 

plans and construction from the Association, including that said plans and construction 

would be given the necessary final approval based, at least in part, on the association with 

New Millennium . . . and his representation of personal relationships with the Association 

architectural committee members.” Oblas and Adams alleged that they justifiably relied 

 

1

In the prior appeal, we concluded that Oblas and Adams had stated claims against 

New Millennium and Malone for breach of contract, fraud, negligent misrepresentation, 

conspiracy, and slander of title. We reversed a judgment of dismissal after the trial court 

had sustained a demurrer to the third amended cross-complaint. (The Oaks of Calabasas 

Homeowners Assn. v. Oblas (Mar. 26, 2012, B227873) [nonpub. opn.].)

2 The parties stipulated to the filing of a fifth amended cross-complaint to correct 

discrepancies in, and uncertainty over the filing of, the fourth amended cross-complaint.

3 Oblas and Adams apparently intended references in their fifth amended crosscomplaint to an August 8, 2004 letter to refer to the October 8, 2004 letter. 
5

on these misrepresentations, and on the concealment and failure to disclose unspecified 

information, in entering into the contract with Harper Pools. 

C. The Motion for Summary Judgment

On April 12, 2013 Harper Pools and Robertson filed a motion for summary 

judgment or in the alternative for summary adjudication.4 They argued that the alleged

representation that the completed construction would receive final approval was an 

opinion or prediction of a future event that did not support a fraud cause of action. They 

also argued that Robertson believed the representation was true at the time he made it, 

that any misrepresentation was unintentional, and that he had no intent to deceive. 

Robertson stated in his supporting declaration that, based on his 27 years of experience 

designing and constructing over 1,000 pools, he believed at the time Harper Pools entered 

into the contract with Oblas and Adams that the Homeowners Association would approve 

the plans, the construction would conform to the plans, and the Homeowners Association 

would give final approval to the completed construction. Robertson also stated that he 

never “guaranteed” final approval.

In opposition to the motion, Oblas and Adams asserted that they had recently 

discovered that in December 2004 Robertson had sold his interest in Harper Pools to 

X-Scapes Construction, Inc. They stated that they intended to bring a motion for leave to 

file a sixth amended cross-complaint alleging fraud based on Robertson’s failure to 

disclose he was at the time planning to, and subsequently did, sell the company. They 

also argued that the evidence showed that, even if Robertson did not make the 

misrepresentations described in the fifth amended cross-complaint in writing, he made 

them orally. They also conceded they could not establish their conspiracy cause of action 

as pleaded in their fifth amended cross-complaint (i.e., a conspiracy between Robertson 

 

4 Although Oblas and Adams did not name Robertson as a cross-defendant in their 

fifth amended cross-complaint, at some point Robertson apparently appeared as a crossdefendant, and the parties and the trial court treated him as a party. 
6

and Malone), but stated they would seek leave to file a sixth amended cross-complaint 

alleging a conspiracy between Robertson and others. 

On July 3, 2015 the trial court granted the motion by Harper Pools and Robertson 

for summary adjudication on the causes of action for fraud, negligent misrepresentation, 

and conspiracy. The court’s order stated, “Oblas appears to concede these claims do not 

lie.” Noting that Oblas and Adams had represented that they would be moving for leave 

to file a sixth amended cross-complaint, the court granted summary adjudication on the 

three causes of action without prejudice to the court’s ruling on the motion for leave to 

amend, which Oblas and Adams had filed on June 21, 2013. The trial court also granted 

summary adjudication in favor of Harper Pools and Robertson on the causes of action for 

estoppel and injunctive relief, ruling that injunctive relief was a remedy and not a cause 

of action and that Oblas and Adams could allege injunctive relief in the prayer. The court 

also noted that Oblas and Adams had dismissed with prejudice their breach of contract 

and slander of title causes of action against Robertson.5 

D. The Motion for Leave To File a Sixth Amended Cross-Complaint

In their motion for leave to file a sixth amended cross-complaint, Oblas and 

Adams sought to amend their cross-complaint to allege that in December 2004 Robertson 

failed to disclose his plans to sell Harper Pools and his sale of the company. Their 

proposed sixth amended cross-complaint also alleged that Robertson continued to work 

for Harper Pools part-time in sales and design to create the appearance that he was still 

working on projects at The Oaks of Calabasas, “even though he would have no oversight 

or control over any of the actual design and construction of the projects moving forward.” 

Oblas and Adams’ proposed amendments alleged that they would not have hired Harper 

 

5 The order stated the court was denying the motion for summary judgment. By 

granting summary adjudication on all causes of action remaining against Robertson, 

however, the trial court effectively granted summary judgment in favor of Robertson, 

albeit with the qualifier that the ruling was without prejudice to the ruling on the pending 

motion for leave to file a sixth amended cross-complaint. 
7

Pools had they known “that a new entity now owned Harper Pools and would be 

responsible for the construction of the pool and landscaping.” Oblas and Adams also 

sought to add Mark Merriman and Marc Berger, former officers and owners of Harper 

Pools, as cross-defendants. 

At the time Oblas and Adams filed their motion, the scheduled trial date was 

August 5, 2013. Oblas and Adams argued that they did not discover until Robertson’s 

deposition in March 2013 that Robertson had sold Harper Pools in December 2004 and 

that they sought leave to amend their cross-complaint after determining that Malone was 

not aware of this information and should not be a cross-defendant. They stated that they 

took Malone’s deposition in April 2013, obtained the deposition transcript, signed a 

release with Malone on June 13, 2013, and filed their motion for leave to amend shortly 

thereafter. 

Harper Pools and Robertson argued in opposition to the motion for leave to amend 

that Oblas and Adams knew in 2006 that Robertson had sold his interest in Harper Pools 

or had brought in investors, citing an October 3, 2006 email from Oblas and Adams to 

Robertson and an October 20, 2008 declaration by Adams. Harper Pools and Robertson 

argued that, even if Oblas and Adams had only recently learned of the sale, their delay in 

bringing the motion was unreasonable and would require the court to continue the trial 

and reopen discovery. They also argued that the new allegations had no merit and did not 

support a fraud cause of action. 

On August 5, 2013 the trial court denied the motion for leave to amend. The court 

ruled that Oblas and Adams knew as early as 2006 that Robertson had sold Harper Pools 

and, in the exercise of reasonable diligence, should have discovered that the new owner, 

X-Scapes, was a fledgling company. The court stated that, even if the failure to discover 

the facts in 2006 were excusable, Oblas and Adams should have brought the motion 

sooner after Robertson’s deposition in March 2013 and Malone’s deposition in April 

2013. The court also stated that allowing Oblas and Adams to file the proposed sixth 

amended cross-complaint would require a trial continuance to allow time for additional 

discovery and potentially dispositive motions, and would prejudice the other parties. 
8

E. The Motion for Reconsideration

On August 14, 2013 Oblas and Adams filed a motion under Code of Civil 

Procedure section 1008, subdivision (a), for reconsideration of the court’s order denying 

their motion for leave to file a sixth amended cross-complaint. They argued that since the 

court’s denial of their motion for leave to amend they had settled with all of the crossdefendants other than Robertson, the court had vacated the trial date, and Robertson 

would not be prejudiced by allowing Oblas and Adams to file their proposed amended 

cross-complaint.

Harper Pools opposed the motion for reconsideration, arguing the prejudice of a 

trial continuance was not the only reason the court had denied the motion for leave to file 

the proposed sixth amended cross-complaint. The court also denied the motion based 

on, among other reasons, the lack of reasonable diligence in bringing the motion and the 

need to reopen discovery. Harper Pools also stated that it agreed to settle the case based 

on its understanding that Oblas and Adams would dismiss both Harper Pools and 

Robertson, and that the parties never finalized the proposed settlement. Harper Pools 

also disputed the allegation that Robertson was not involved in the design and 

construction of Oblas and Adams’ pool and argued that the evidence showed that he was.

The trial court denied the motion for reconsideration.6 On December 12, 2013 the 

trial court entered judgment in favor of Robertson on the fifth amended cross-complaint. 

Oblas and Adams timely appealed.

DISCUSSION

A. Standard of Review 

“‘On appeal after a motion for summary judgment has been granted, we review the 

record de novo, considering all the evidence set forth in the moving and opposition 

papers except that to which objections have been made and sustained. [Citation.]’ 

 

6 The order denying the motion for reconsideration is not included in the record on 

appeal.
9

[Citation.] A motion for summary judgment is properly granted ‘if all the papers 

submitted show that there is no triable issue as to any material fact and that the moving 

party is entitled to a judgment as a matter of law.’ [Citation.]” (Biancalana v. T.D. 

Service Co. (2013) 56 Cal.4th 807, 813; see Rhea v. General Atomics (2014) 227 

Cal.App.4th 1560, 1566.) “‘A defendant moving for summary judgment has the burden 

of producing evidence showing that one or more elements of the plaintiff’s cause of 

action cannot be established, or that there is a complete defense to that cause of action.

[Citations.] The burden then shifts to the plaintiff to produce specific facts showing a 

triable issue as to the cause of action or the defense. [Citations.] Despite the shifting 

burdens of production, the defendant, as the moving party, always bears the ultimate 

burden of persuasion as to whether summary judgment is warranted. [Citation.]’

[Citation.]” (Hypertouch, Inc. v. ValueClick, Inc. (2011) 192 Cal.App.4th 805, 817.)

“‘In deciding whether a plaintiff has met h[is] burden of proof, we consider both direct 

and circumstantial evidence, and all reasonable inferences to be drawn from both kinds of 

evidence, giving full consideration to the negative and affirmative inferences to be drawn 

from all of the evidence, including that which has been produced by the defendant.’ 

[Citation.]” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889.) We 

independently review the trial court’s ruling on a summary judgment motion, liberally 

construe the evidence in favor of the parties opposing the motion, and resolve all doubts 

concerning the evidence in their favor. (Elk Hills Power, LLC v. Board of Equalization

(2013) 57 Cal.4th 593, 606.) “‘The same standards apply to motions for summary 

adjudication.’ [Citation.]” (Multani v. Witkin & Neal (2013) 215 Cal.App.4th 1428, 

1444.)

B. Triable Issues of Material Fact Preclude Summary Judgment

The essential elements of a cause of action for intentional misrepresentation are 

(1) a misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance,

(4) justifiable reliance, and (5) resulting damage. (Cansino v. Bank of America (2014) 

224 Cal.App.4th 1462, 1469.) The essential elements of a cause of action for negligent 
10

misrepresentation are the same except, with respect to the second element, the defendant 

need only make a representation of fact with no reasonable grounds for believing the 

representation was true, rather than making the representation with knowledge of its 

falsity. (Chapman v. Skype (2013) 220 Cal.App.4th 217, 231.) Oblas and Adams argue 

that the court erred in granting Robertson’s motion for summary adjudication on their 

fraud and negligent misrepresentation causes of action because there are triable issues of 

material fact regarding whether Robertson made the alleged representations and whether 

he reasonably believed that the Homeowners Association would give final approval of 

the construction.7

Robertson’s declaration in support of his motion for summary judgment stated that

he believed that Harper Pools would successfully complete the project and obtain final 

approval because of his 27 years of experience, his successful construction of over 1,000 

pools, his capabilities as a designer and manager, Harper Pools’ history of success, and 

his confidence in Harper Pools’ construction crews. This evidence satisfied Robertson’s 

initial moving burden on summary judgment by negating the elements of knowledge of 

falsity (fraud) and no reasonable grounds for believing his representation was true 

(negligent misrepresentation).8It suggests that Robertson actually and reasonably 

believed that Harper Pools would successfully complete the construction project and that 

the Homeowners Association would give final approval. 

Oblas and Adams, however, created triable issues of material fact by presenting 

evidence that in December 2004 Robertson was planning to sell and then sold Harper 

 

7 Oblas and Adams do not challenge the order granting summary adjudication on

their conspiracy cause of action. 

8 Robertson did not deny that he made the representations alleged in the fifth 

amended cross-complaint, but stated only that he did not recall stating that he had “a 

direct line to obtaining final approval of plans and construction from the Association.” 

He stated that if this alleged statement only meant that he was familiar with the 

requirements and procedures of the Homeowners Association and had direct dealings

with individuals acting on its behalf, the statement was true. 
11

Pools, but failed to disclose these facts before the parties signed the construction contract 

in February 2005. Robertson testified in his deposition, which Oblas and Adams 

submitted in opposition to the motion for summary judgment, that in April 2004 he began 

negotiations with X-Scapes for the sale of Harper Pools, that he sold Harper Pools in 

December 2004, and that he did not inform Oblas and Adams of the sale. It is a 

reasonable inference from these facts that Robertson knew that his continued 

participation in the construction was uncertain, Harper Pools would no longer have the 

benefit of his experience, knowledge, and personal contacts, and therefore Robertson did 

not believe or had no reasonable grounds for believing that Harper Pools would complete 

the construction and obtain final approval. Whether a defendant believed or had 

reasonable grounds for believing that a representation was true depends on the 

defendant’s knowledge, which may be established by inferences from circumstantial 

evidence. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206-1207; Clear Lake 

Riviera Community Assn. v. Cramer (2010) 182 Cal.App.4th 459, 467.) Thus, there were 

triable issues of material fact regarding whether Robertson actually believed he would 

continue his involvement in the construction and the Homeowners Association would 

give final approval of the construction, and whether he had reasonable grounds for any 

such beliefs, which precluded summary adjudication on the fraud and negligent 

misrepresentation causes of action. (See Intrieri v. Superior Court (2004) 117 

Cal.App.4th 72, 87 [evidence supported a reasonable inference that the defendant knew 

that his statement was false and lacked reasonable grounds for believing it was true, 

creating a triable issue of material fact precluding summary adjudication].)9 

 

9 Robertson argues that Oblas and Adams attempted to assert a new theory of 

liability not alleged in their fifth amended cross-complaint by arguing in opposition to the 

summary judgment motion that he fraudulently concealed his sale of Harper Pools. The 

fifth amended cross-complaint, however, includes this theory. Robertson’s sale of Harper 

Pools is relevant to the truth or falsity of Robertson’s statements implying that he would 

continue to be involved in the construction and that Harper Pools would continue to have 

the benefit of his experience, knowledge, and connections.
12

Robertson also argues that his alleged misrepresentations were predictions of 

future events and therefore were nonactionable opinions. (See Public Employees’ 

Retirement System v. Moody’s Investors Service, Inc. (2014) 226 Cal.App.4th 643, 662.) 

A representation by a person who possesses or claims to possess superior knowledge, 

however, may imply knowledge of facts that make the prediction probable. (Jolley v. 

Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 892-893; see Public Employees’ 

Retirement System v. Moody’s Investors Service, Inc., supra, 226 Cal.App.4th at p. 662 

[“‘when a party possesses or holds itself out as possessing superior knowledge or special 

information or expertise regarding the subject matter and a plaintiff is so situated that it 

may reasonably rely on such supposed knowledge, information, or expertise, the 

defendant’s representation may be treated as one of material fact’”].) If there is a 

reasonable doubt as to whether a statement was an opinion or an affirmation of fact, the 

trier of fact must decide that question. (Jolley, at p. 893; see Furla v. Jon Douglas Co.

(1998) 65 Cal.App.4th 1069, 1081 [“[w]hether a statement is nonactionable opinion or 

actionable misrepresentation of fact is a question of fact for the jury”].) Robertson held 

himself out as an experienced landscape and pool contractor who had expertise working 

on projects in The Oaks of Calabasas community, with special information about the 

approval process. Robertson’s alleged representations that he had a direct line to 

obtaining final approval and that the Homeowners Association would give final approval 

based in part on his personal relationships with the Homeowners Associations’ 

decisionmakers could reasonably be interpreted to imply that he believed that he would 

continue to be involved in the construction and that Harper Pools would continue to have 

the benefit of his experience, knowledge, and contacts within the Homeowners 

Association. At a minimum, whether his representations were facts or opinions was for 

the jury to decide.

10

 

10 Indeed, Robertson’s arguments on appeal about what “self-respecting salesmen” 

do, about why Robertson would make a misrepresentation that was not in his best interest 

and would only buy a lawsuit, that Robertson was “motivated by the desire for good 

word-of-mouth to generate more business in the development,” that Harper Pools and 
13

Finally, citing Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, Robertson argues 

that Oblas and Adams did not “establish intent to deceive” because they “have nothing 

more than non-performance of an alleged oral promise.” Tenzer involved promissory 

fraud, where the defendant makes a promise he or she has no intention of performing at 

the time of the promise. (See Riverisland Cold Storage, Inc. v. Fresno-Madera 

Protection Credit Assn. (2013) 55 Cal.4th 1169, 1183.) In that situation, in order to 

prevent the plaintiff from converting a routine contract claim into a fraud claim, 

“‘something more than nonperformance is required to prove the defendant’s intent not to 

perform his promise.’ [Citations.]” (Tenzer, at p. 30.) Oblas and Adams, however, have 

not alleged a promissory fraud claim. They claim Robertson made false statements and 

concealed material facts that induced them to enter into a contract and build a pool and 

landscaping for which they could not obtain approval. The Tenzer rule for promissory 

fraud does not apply. 

C. The Trial Court Did Not Abuse Its Discretion in Denying Leave 

To File the Proposed Sixth Amended Cross-Complaint

Oblas and Adams argue that the trial court erred by concluding that they 

unreasonably delayed in seeking to amend their cross-complaint, that further amendment 

would prejudice Robertson and Harper Pools, and that the allegations in the proposed 

sixth amended cross-complaint did not state claims. Oblas and Adams argue that, even if 

they knew in 2006 that Robertson had sold Harper Pools, they did not know at that time 

that the sale had occurred before Robertson signed the construction contract in February 

2005, and in 2006 they had no reason to investigate whether the sale had occurred before 

February 2005. 

A trial court may allow the amendment of a pleading in the furtherance of justice. 

(Code Civ. Proc., §§ 576, 473, subd. (a)(1).) Generally, a court should grant leave to 

 

Robertson had already built a lot of pools and did not need the business, and that Oblas

and Adams’ theory “simply makes no sense” are all jury arguments.
14

amend if the amendment would not prejudice an opposing party. (P & D Consultants, 

Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1345.) The court may deny leave 

to amend, however, if the party seeking to amend unreasonably delayed seeking an 

amendment and the amendment would prejudice an opposing party. (Ibid.) The need to 

reopen and conduct further discovery, the cost of additional trial preparation, and trial 

delay are examples of prejudice that, in the trial court’s discretion, may justify the denial 

of leave to amend. (Ibid.; see Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 

471, 486-488.) 

“[U]nwarranted delay in seeking leave to amend may be considered by the trial 

court when ruling on a motion for leave to amend [citation], and appellate courts are less 

likely to find an abuse of discretion where, for example, the proposed amendment is 

‘“offered after long unexplained delay . . . or where there is a lack of diligence”’

[citation]. Thus, when a plaintiff seeks leave to amend his or her complaint only after the 

defendant has mounted a summary judgment motion directed at the allegations of the 

unamended complaint, even though the plaintiff has been aware of the facts upon which 

the amendment is based, ‘[i]t would be patently unfair to allow plaintiffs to defeat [the] 

summary judgment motion by allowing them to present a “moving target” unbounded by 

the pleadings.’ [Citations.]” (Falcon v. Long Beach Genetics, Inc. (2014) 224 

Cal.App.4th 1263, 1280; see Melican v. Regents of University of California (2007) 151 

Cal.App.4th 168, 175 [“appellate courts are less likely to find an abuse of discretion 

where, for example, the proposed amendment is ‘offered after long unexplained 

delay . . . or where there is a lack of diligence’”].) We review the denial of a motion for 

leave to amend a pleading for abuse of discretion. (Falcon, at p. 1280.)

Robertson submitted an October 3, 2006 email from Oblas and Adams to 

Robertson stating that they had learned that Robertson “either sold ‘your’ company or 

brought in investors, and you have personally disappeared from our job.” (Emphasis 

omitted.) Robertson also submitted an October 20, 2008 declaration Adams had 

previously filed in this action, in which she stated that Robertson “had sold his business 

to investors and did not honor his promises with us.” This evidence showed that, several 
15

years before they sought to amend their cross-complaint to allege that Robertson had 

failed to disclose his plans to sell Harper Pools and his subsequent sale of the company, 

Oblas and Adams were aware of the sale and suspected that Robertson had neglected 

their construction project. Even if Oblas and Adams did not actually know in October 

2006 or October 2008 that Robertson had sold Harper Pools before signing the 

construction contract in February 2005, the trial court reasonably concluded that they 

failed to act diligently to discover the facts in light of their actual knowledge and 

suspicions, and that their delay in seeking leave to amend was unreasonable. Moreover, 

when the court heard the motion for leave to amend on August 5, 2013, the trial date was 

only a few days away. The trial court reasonably concluded that allowing Oblas and 

Adams to allege a new factual basis for their fraud and negligent misrepresentation 

claims would prejudice the cross-defendants by necessitating the reopening of discovery, 

a further continuance of the trial, and additional dispositive motions. The trial court did 

not abuse its discretion in denying Oblas and Adams leave to file a sixth amended crosscomplaint. 

D. The Trial Court Did Not Abuse Its Discretion in Denying the 

Motion for Reconsideration

Oblas and Adams contend that, by the time they filed their motion for 

reconsideration, the trial court had vacated the trial date (because of the pending 

settlements), so that the prejudice of an imminent trial date no longer existed. Code of 

Civil Procedure section 1008, subdivision (a), authorizes a court to reconsider its prior 

ruling on a motion if a party timely moves for reconsideration based on new or different 

facts, circumstances, or law. We review the ruling on a motion for reconsideration for 

abuse of discretion. (Farmers Ins. Exchange v. Superior Court (2013) 218 Cal.App.4th 

96, 106.)

The fact that the court had vacated the trial date did not eliminate the other forms 

of prejudice resulting from the need to reopen discovery and the need, in setting a new 

trial date, to allow time for further discovery and potential dispositive motions addressing 
16

the new allegations. Nor did the vacating of the trial date negate Oblas and Adams’ lack 

of diligence in seeking leave to amend. The trial court did not abuse its discretion in 

denying the motion for reconsideration.

DISPOSITION

The judgment is reversed with directions to vacate the order granting Robertson’s 

motion for summary adjudication on the fraud and negligent misrepresentation causes of 

action, and to enter a new order denying his motion for summary adjudication on those 

causes of action and denying his motion for summary judgment. Robertson’s motion for 

sanctions is denied. Oblas and Adams are to recover their costs on appeal. 

SEGAL, J.

We concur:

PERLUSS, P. J.

ZELON, J.