Judge Alison Mackenzie, Case 22SMCV00767 2023-05-18 Tentative Ruling

Judge: Alison Mackenzie, Case: 22SMCV00767, Date: 2023-05-18 Tentative Ruling

Case Number: 22SMCV00767 Hearing Date: May 18, 2023 Dept: 207

Background

Plaintiff 27715 PCH LLC (“Plaintiff”) brings this action against Hacopian Design & Development Group, LLC (“Defendant”) arising from claims that Defendant fraudulently induced Plaintiff to transfer title to real property. Plaintiff now brings a motion seeking leave of Court to file a First Amended Complaint which would add additional factual allegations to the causes of action already asserted against Defendant in the operative Complaint. Plaintiff has also separately filed an application seeking the pro hac vice admission of Richard C. Ebeling to act as Plaintiff’s counsel in this action. Plaintiff’s motions are unopposed, and the Court will address them together.

Legal Standard

Code Civ. Proc. § 473(a)(1) provides, in relevant part: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.”

“This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047.) Under California Rules of Court, rule 3.1324(a), a motion to amend a pleading shall (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.

Under California Rules of Court, rule 3.1324(b), a separate declaration must accompany the motion and must specify (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made earlier.

California Rule of Court, rule 9.40 provides that an attorney in good standing in another jurisdiction may apply to appear as counsel pro hac vice in the State of California by filing a verified application together with proof of service by mail of a copy of the application and notice of hearing on all parties who have appeared in the case and on the State Bar of California at its San Francisco office, with payment of a $50.00 fee, so long as that attorney is not a resident of the State of California, and is not regularly engaged in substantial business, professional, or other activities in the State of California.

The application must state: (1) the applicant’s residence and office addresses; (2) the courts to which the applicant has been admitted to practice and the dates of admission; (3) that the applicant is a member in good standing in those courts; (4) that the applicant is not currently suspended or disbarred in any court; (5) the title of each court and cause in which the applicant has filed an application to appear as counsel pro hac vice in this state in the preceding two years, the date of each application, and whether or not it was granted; and (6) the name, address, and telephone number of the active member of the State Bar of California who is attorney of record in the local action. (CRC, rule 9.40(d).)

Analysis

1. Motion for Leave to File First Amended Complaint

Plaintiff seeks leave to file a First Amended Complaint which would add additional factual allegations concerning Plaintiff’s first cause of action for fraud. Plaintiff’s motion is unopposed, and no party has claimed that allowing the proposed amendment would result in any prejudice. The Court finds Plaintiff’s proposed amendment would not alter any of Plaintiff’s theories of liability, and to the extent it may introduce new questions of fact to be investigated through discovery, there remains ample time to do so in this case before trial.

The Court finds Plaintiff has complied with the requirements of California Rules of Court, rule 3.1324 in bringing this motion for leave to amend. Good cause appearing, the Court GRANTS Plaintiff’s motion for leave to file an amended Complaint.

2. Application for Admission Post Hoc Vice

The Court finds the application does not satisfy the requirements of California Rule of Court, rule 9.40. Under rule 9.40(c)(1), Plaintiff was required to file a “proof of service by mail in accordance with Code of Civil Procedure section 1013a of a copy of the application and of the notice of hearing of the application on all parties who have appeared in the cause and on the State Bar of California at its San Francisco office.” Plaintiff’s application was not accompanied by a proof of service, and thus Plaintiff has not shown the application was properly served on all parties and the State Bar of California as required by rule 9.40(c).

Rule 9.40(e) further provides that Plaintiff’s service of the motion and notice of hearing on the State Bar of California must be accompanied by an application fee. Plaintiff’s application does not include proof that this fee was paid and accordingly the Court cannot determine if this requirement has been satisfied.

For these reasons the Court DENIES Plaintiff’s application for Mr. Ebeling to appear as counsel pro hac vice. This denial is without prejudice and Plaintiff may submit a new application which satisfies the requirements set forth above.

Conclusion

Plaintiff’s motion for leave to file a First Amended Complaint is GRANTED. Plaintiff’s application for admission pro hac vice is DENIED without prejudice.