Judge Ashfaq G. Chowdhury, Case Number: 23GD01460, Date: 2023-12-20 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 23GD01460, Date: 2023-12-20 Tentative Ruling

Case Number: 23GD01460 Hearing Date: December 20, 2023 Dept: E

Hearing Date: 12/22/2023 – 8:30am Case No. 23GDCV01460 Trial Date: UNSET Case Name: SONYA JANVELYAN, an individual; and ARTUR SARGSYAN, an individual; v. FARUQUE SIKDER, an individual and as TRUSTEE OF THE SIKDER FAMILY TRUST DATED SEPTEMBER 9, 2011; MARIA SALLIE SIKDER, an individual and as TRUSTEE OF THE SIKDER FAMILY TRUST DATED SEPTEMBER 9, 2011; and DOES 1 through 20, Inclusive

[TENTATIVE RULING ON MOTION FOR LEAVE TO AMEND]

Moving Party: Plaintiffs, Sonya Janvelyan and Artur Sargasyan

Responding Party: No Opposition submitted

16/21 Court Days Lapsed (CCP 1005(b)): No- The moving papers are not timely. “Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing.” (CCP §1005(b).) “…[A]nd if the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 16-day period of notice before the hearing shall be increased by two calendar days.” (Id.)

The instant hearing is set for December 22, 2023. Since the motion was served by email, two calendar days must be added to the 16 court day requirement. Therefore, the instant motion should have been served by November 28, 2023. However, it was served on November 29, 2023. This motion is a day late.

Proper Address (CCP §1013, §1013a): Unclear – Plaintiffs are to address this issue at the hearing.

On eCourt, the attorney Vivian Zambrano is listed as representing both Faruque Sikder, an individual and as Trustee of the Sikder Family Trust dated September 9, 2011, and Maria Sallie Sikder, an individual and as Trustee of the Sikder Family Trust Dated September 9, 2011. Vivan appears to have been properly served this motion.

In the FAC, the operative complaint, Robert Dobrey, as Trustee of the Marcos Trust Dated June 24, 1988, is listed as a Defendant. Dobrey’s counsel is listed on eCourt as Scott Carlson, and his email address is listed as scarlson@stonercarlson.com. The instant motion does not appear to have been served on Scott Carlson.

Proof of Service Timely Filed (CRC Rule 3.1300(c)):Ok

Moving Papers: Notice/Motion; Martirosyan Declaration; Proposed Order

Opposition Papers: No Opposition Papers

Reply Papers: No Reply Papers

RELIEF REQUESTED Plaintiffs, Sonya Janvelyan and Artur Sargasyan move for an order permitting amendment of their Complaint. This motion will be made on the grounds that there is an additional cause of action to be added pertaining to recently discovered facts that relate to the conditions maintained in the original Complaint.

BACKGROUND The initial Complaint in this action was filed on 07/13/2023. On 08/16/2023, the First Amended Complaint (FAC) was filed. Plaintiffs allege that the FAC was filed due to a name correction prior to any responsive pleading being filed by Defendants.

Plaintiffs now seek leave to amend the FAC because they have recently discovered additional facts which relate to the conditions alleged in the original Complaint, specifically, Defendants’ failure to return Plaintiffs’ security deposit after 35 days of vacating the subject property, warranting an additional cause of action.

LEGAL STANDARD – LEAVE TO AMEND The court may, in furtherance of justice and on any proper terms, allow a party to amend any pleading. (Code Civ. Proc., § 473, subd. (a)(1); Branick v. Downey Savings & Loan Association (2006) 39 Cal.4th 235, 242.) The court may also, in its discretion and 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. (Code Civ. Proc., § 473, subd. (a); Branick, supra, 39 Cal.4th at 242.)

Judicial policy favors resolution of all disputed matters between the parties and, therefore, the courts have held that “there is a strong policy in favor of liberal allowance of amendments.” (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 296-97; see also Ventura v. ABM Industries, Inc. (2013) 212 Cal.App.4th 258, 268) [“Trial courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial where the adverse party will not be prejudiced.”].) Leave to amend is thus liberally granted, provided there is no statute of limitations concern. (Kolani v. Gluska (1998) 64 Cal.App.4th 402, 411.)

The court may deny the plaintiff’s leave to amend if there is prejudice to the opposing party, such as delay in trial, loss of critical evidence, or added costs of preparation. (Id.)

Under California Rules of Court, rule 3.1324, a motion to amend a pleading before trial must (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. (Cal. Rules of Court, rule 3.1324(a).)

Further, a separate supporting 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 reason why the request for amendment was not made earlier must accompany the motion. (Id., rule 3.1324(b).)

“Leave to amend is in general required to be liberally granted [citation omitted], provided there is no statute of limitations concern. Leave to amend may be denied if there is prejudice to the opposing party, such as delay in trial, loss of critical evidence, or added costs of preparation. [citation omitted].” (Kolani v. Gluska (1998) 64 Cal.App.4th 402, 411.)

ANALYSIS

As a preliminary matter, Plaintiffs’ memorandum cites to CCP §473(a) and 576 as the legal basis that allows them the authority to seek leave to amend. As to the procedural requirements of CRC, Rules 3.1324(a) and 3.1324(b), Plaintiffs make no reference to these rules. Since Plaintiffs’ motion and declaration does not make reference to these rules, the Court is left to guess how Plaintiffs are satisfying each procedural requirement.

CRC 3.1324(a)

Under California Rules of Court, rule 3.1324, a motion to amend a pleading before trial must:

(1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments;

Here, Plaintiffs attach Exhibit 1 in their motion which is a Second Amended Complaint (SAC). Presumably, Plaintiffs are seeking leave to file this SAC since the prior operative complaint was the FAC. However, the Court notes that on page 4 of Plaintiffs’ motion, Plaintiffs state, “The proposed Third Amended Complaint is attached as Exhibit 1.” (Pl. Mot. p.4.) Therefore, at the hearing, the Plaintiffs are to clear this issue up as to the discrepancy of Exhibit 1 being a SAC, but Plaintiffs’ motion stating that Exhibit 1 is a proposed Third Amended Complaint.

(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

Here, Plaintiffs’ motion does not make any mention of deleting allegations from the previous pleading.

(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. (Cal. Rules of Court, rule 3.1324(a).)

Here, Plaintiffs’ motion states it is adding the following:

1. The Thirteenth Cause of action: Violation of Cal. Civ. Code §1950.5 was added to the Second Amended Complaint and is evidenced in the following sections:

a. Caption of the Second Amended Complaint;

b. Paragraphs 170-183 on Pages 25-26.

2. The final paragraph on Page 27, beginning with, “WHEREFORE, Plaintiffs pray for judgment as follows” was amended to include relevant damages related to the added cause of action.

CRC 3.1324(b)

Further, under CRC 3.1324(b), a separate declaration must accompany the motion and must specify:

(1) the effect of the amendment;

Plaintiffs do not explicitly state how this procedural requirement is met. Plaintiffs attached the declaration of Martirosyan. Presumably, the effect of the amendment is to add the thirteenth cause of action for violation of civil code section 1950.5. (Martirosyan Decl. ¶2.)

(2) why the amendment is necessary and proper;

Plaintiffs do not explicitly state how this procedural requirement is met. The closest the Court can find in the Martirosyan Declaration as to meeting this requirement is as follows:

“On or around September 27, 2023, Plaintiffs counsel emailed Defense counsel, Vivian Zambrano, from PHILLIPS SPALLAS & ANGSTADT LLP to stipulate to the proposed amendment. Defense counsel stated, “Defendants would not stipulate to the proposed amendment.” Necessitating the need to file the instant motion.” (Martirosyan Decl. ¶9.)

(3) when the facts giving rise to the amended allegations were discovered;

As to this procedural requirement, Plaintiffs state:

“The facts giving rise to the amended allegations were discovered on or around September 27, 2023.” (Martirosyan Decl. ¶5.)

(4) the reason why the request for amendment was not made earlier must accompany the motion. (Id., rule 3.1324(b).)

Here, Plaintiffs don’t explicitly state how this procedural requirement is met. The closest the Court can find in the Martirosyan Declaration as to meeting this requirement is as follows:

“This amendment to the Complaint is necessitated by newly discovered facts that were not available to both Plaintiffs and Plaintiffs counsel at the time the lawsuit was filed.” (Martirosyan Decl. ¶4.)

“Plaintiffs vacated the property on or around August 01, 2023 and Defendants had a duty to provide an itemized list of all deductions made from the security deposit and/or return the security deposit provided to them at the start of Plaintiffs tenancy. On or around September 05, 2023 was the deadline to provide the itemization and/or the return of the security deposit to

Plaintiffs, which Defendants failed to do. On or around September 15, 2023, Plaintiffs counsel was made aware that no security deposit was returned.” (Martirosyan Decl. ¶¶6-8.)

TENTATIVE RULING The Court’s tentative is the GRANT the motion. That said, Plaintiffs are to address the procedural requirements that were listed in the Court’s “Analysis” section of its tentative ruling.