Amending Complaint May Not Be Conditioned on Paying Fees

Monday, April 27, 2026

Page 1

Court of Appeal:

Amending Complaint May Not Be Conditioned on Paying Fees

Opinion Says Statute Governing Court’s Power to Allow Party to Fix Mistakes in Pleadings Does Not Authorize Fee-Shifting; Case Suggesting Otherwise Is No Longer Good Law

By Kimber Cooley, associate editor

Div. One of the Fourth District Court of Appeal held Friday that a trial judge erred in conditioning leave to amend a complaint, to add allegations necessary to withstand a pleading challenge, on the payment of $25,000 in attorney fees to the opposing side to account for costs associated with filing a demurrer, saying the governing statute does not authorize such an order.

The trial judge issued the conditional decree under Code of Civil Procedure §473(a), which provides that “[t]he court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading…by adding…the name of any party, or by correcting…a mistake in any other respect” and, if the alteration will postpone the proceedings, “require, as a condition…, the payment to the adverse party of any costs as may be just.”

Friday’s opinion was authored by Justice Truc T. Do, who opined:

“The trial court’s error is understandable. Several major treatises on California law interpret case law authority to hold that the provision in section 473…that allows leave to amend a pleading to be conditioned [‘on such terms as may be proper’] authorizes courts to condition leave on payment of opposing counsel’s attorney fees.”

Remarking that “[w]e do not read the relevant cases so broadly,” Do acknowledged that the 1907 California Supreme Court decision in Williams v. Myer contains language suggesting that such conditional orders are authorized under the section, but declared:

“To the extent Williams can be read…to allow leave to amend to be conditioned on payment of attorney fees whenever it appears that such terms ‘may be just,’ it is…no longer good law….In 1933, the Legislature amended [Code of Civil Procedure 1021] to expressly provide that, in the absence of an agreement by the parties, attorney fee awards by courts are authorized only as ‘specifically provided for by statute.’…In light of this language,…trial courts do not have inherent supervisory power to order payment of attorney fees as a sanction.”

Justice David M. Rubin joined in the opinion, and Justice Terry B. O’Rourke concurred in the result.

Employment Dispute

The order was issued after Karla Amezcua filed a complaint against her former employer, Securecare, Inc., and its principal officer, Robert Perez, in January 2022, asserting claims for wrongful termination and Labor Code violations. In a first amended complaint, she alleged that the business was “formerly known as Eastlake Village ME LLC” but changed its name sometime before January 2019.

She claimed that she worked at the location as a massage therapist from mid-2011 until late 2019. Securecare operated at the location as a franchisee of Massage Envy Franchising LLC, which was not named as a defendant.

After Securecare produced a 2018 franchise purchase agreement with Eastlake in late 2024, Amezcua alleged that she learned that Massage Envy was allegedly “responsible for drafting the compensation structure at issue” in the lawsuit and that Securecare had not assumed the liabilities of its predecessor.

San Diego Superior Court Judge Blaine K. Bowman granted Amezcua’s request to substitute Massage Envy and three other parties as Doe defendants on Jan. 3, 2025. A few days later, Amezcua amended the pleading to add the named parties but made no other changes.

In March, after the parties met and conferred about a potential demurrer, the plaintiff conceded that the factual allegations in the operative pleading were insufficient to state a claim against Massage Envy. Communications about a possible stipulation to an amendment broke down, and Massage Envy filed a demurrer on March 17, 2025.

One month later, Amezcua requested authorization to file a second amended complaint alleging that the franchisor exercised oversight amounting to joint-employer control over Securecare.

In September, Bowman sustained Massage Envy’s demurrer but granted leave to amend, conditioned, sua sponte, upon the payment of $25,000 in attorney fees that the court found reasonably attributable to the costs of meeting and conferring regarding the demurrer as well as in preparing the moving and reply papers. Amezcua filed a petition for a writ of mandate, seeking vacatur of the order.

Conditional Order

Do pointed to §1021, which provides:

“Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties.”

Saying that “Section [473(a)], relied upon by the trial court here, contains no such provision,” she acknowledged that the Williams decision declared that it was proper “to require the payment of one hundred dollars to defendant as compensation for expenses incurred in the employment of attorneys” as a condition on granting leave to amend to a plaintiff who made the request after trial had already begun. However, she reasoned:

“The holding by our high court—that trial courts have discretion to condition leave to amend on payment of ‘expenses incurred in the employment of attorneys’—sounds at first blush to potentially include the payment of attorney fees in addition to other attorney-related expenses incurred at trial….Yet, the phrase ‘expenses incurred in the employment of attorneys’ is a singularly odd way to refer to ‘attorney fees and expenses.’ Why not call a fee a fee?”

She continued:

“In our view, the failure to say ‘attorney fees’ when referring to the payment of attorney fees would be a glaring and inexplicable omission by our high court in light of California’s adoption of the [so-called “American rule”], at the time of its founding, ‘under which each party to a lawsuit ordinarily must pay his or her own attorney fees.’…On balance, we do not believe the court would hold that leave to amend could be conditioned on payment of the opposing party’s attorney fees without explicitly saying so.”

Contrary Holding

In any event, she said that adoption of the present form of §1021, expressly requiring statutory authority to shift responsibility for fees from one party to the other in the absence of an agreement, would render any contrary holding in Williams void, saying:

“We conclude the trial court here misapprehended its authority to condition leave to amend…on payment of Massage Envy’s attorney fees. Section 473…does not authorize fee-shifting orders as a means to address improper litigation tactics in the context of amendments and challenges to the pleadings.”

She added:

“[T]he trial court found that Amezcua did not adequately explain why she did not amend the FAC to include the necessary substantive allegations against Massage Envy when she sought leave to amend to name Massage Envy as a DOE defendant. This basis for shifting attorney fees was inappropriate because attorney fee awards for frivolous filings…and litigation tactics are permitted by statute only after compliance with substantial procedural protections,…and only when supported by very specific factual findings, such as bad faith or intent ‘to harass or to cause unnecessary delay….’…Those procedural protections were absent here.”

Do declared:

“Let a writ of mandate issue directing respondent Superior Court to strike the payment condition, to the extent it includes attorney fees, from its order sustaining Massage Envy’s demurrer and granting Amezcua leave to amend. Costs are awarded to Amezcua.”

The case is Amezcua v. Superior Court (Massage Envy Franchising LLC), 2026 S.O.S. 1112.