Judge: Christopher K. Lui, Case: 19STCV34066, Date: 2022-10-21 Tentative Ruling

Case Number: 19STCV34066    Hearing Date: October 21, 2022    Dept: 76

Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the motion addressed herein.  As required by Rule 3.1308(a)(2), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue.  Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776.  If notice of intention to appear is not given and the parties do not appear, the Court will adopt the tentative ruling as the final ruling.

            Plaintiff alleges that Defendant (the live-in girlfriend of Plaintiff’s late father, Eugene) fraudulently transferred title to two real properties from Plaintiff’s name to Defendant’s name, pursuant to a Power of Attorney Plaintiff had given to her father to refinance a loan.

Defendant Ludmilla Haikin filed a Cross-Complaint alleging that Plaintiff/Cross-Defendant knowingly consented to the transfer of the subject property to Defendant/Cross-Complainant in her individual name, and Cross-Complainant added Cross-Defendant back on title. Cross-Complainant alleges that she took a loan out on the property for which she was the only responsible borrower. Later, Cross-Defendant allegedly agreed that the property only be in Cross-Complainant’s name. However, after Eugene passed away Cross-Defendant claimed for the first time that the property was hers.

The Court granted Defendant/Cross-Complainant Ludmila Haikin, an individual, individually and as Trustee of the Haikin Family Trust’s motion for summary judgment as to the Second Amended Complaint. 

The Court granted Plaintiff’s motion for new trial in part. Plaintiff Anat Krichmar moves for leave to file a Third Amended Complaint.

TENTATIVE RULING

            The Court denies Defendant Bank of America, N.A.’s notice of joinder in the Opposition as untimely.

Plaintiff’s motion for leave to file a Third Amended Complaint is DENIED without prejudice. Plaintiff may bring a motion for leave to file a Third Amended Complaint which eliminates theories of 100 percent ownership based upon Deed recorded in 2007 and earlier, and which only asserts theories of 50 percent ownership based upon the deeds recorded in 2008, 2012, 2013 and 2015.

The hearing on the motion for summary judgment set for October 31, 2022 is CONTINUED to December 16, 2022 at 8:30 a.m. If Plaintiff brings a renewed motion for leave to file a Third Amended Complaint, which is granted before then, the hearing on the motion for summary judgment will go off-calendar as moot.

ANALYSIS

Motion For Leave To File Third Amended Complaint 

Request For Judicial Notice

            Defendant’s request that the Court take judicial notice of documents filed in this action is GRANTED per Evid. Code § 452(d)(court records). 

Discussion 

            The Court denies Defendant Bank of America, N.A.’s notice of joinder in the Opposition as untimely. The joinder was filed on October 12, 2022, which is only six court days prior to the hearing date. A notice of joinder must be filed pursuant to the same deadlines as the papers in which the joinder is made. (See, e.g., Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 719.) CCP § 1005(b) requires that opposing papers by filed nine court days prior to the hearing date.

The Court granted Defendant/Cross-Complainant Ludmila Haikin, an individual, individually and as Trustee of the Haikin Family Trust’s motion for summary judgment as to the Second Amended Complaint.  Judgment was entered on May 13, 2022.

The Court then granted Plaintiff’s motion for new trial in part as to first through fourth causes of action, to the extent they address the deeds recorded in 2008, 2012, 2013 and 2015.Plaintiff Anat Krichmar moves for leave to file a Third Amended Complaint. 

The grounds for this motion are that it is in the interest of justice to grant Plaintiff leave to file the proposed Third Amended Complaint to assert, as an alternative theory, her fifty percent interest in the Property to the extent that all of her claims based on deeds recorded prior to 2008 are time barred. Even if Plaintiff’s claims based on deeds recorded prior to 2008 are time barred, Plaintiff can still assert a fifty percent interest in the subject property.

The motion for leave to file a Third Amended Complaint is DENIED without prejudice. The Court has already denied Plaintiff’s motion for new trial to the extent Plaintiff challenges the finding that Plaintiff’s action is time-barred as to Deeds recorded in 2007 and earlier, i.e., to support Plaintiff’s claim to 100 percent interest. As Defendant points out, Plaintiff is effectively seeking reconsideration of this portion of the Court’s rulings on the motion for summary judgment and motion for new trial. Because the Third Amended Complaint would become the new operative complaint, it would need to be consistent with the Court’s ruling on the motion for summary judgment and motion for new trial. Defendant should not be required to expend resources to eliminate the 100 percent interest theory from the pleadings once again.

Plaintiff may bring a motion for leave to file a Third Amended Complaint which eliminates theories of 100 percent ownership based upon Deed recorded in 2007 and earlier, and which only asserts theories of 50 percent ownership based upon the deeds recorded in 2008, 2012, 2013 and 2015.

The hearing on the motion for summary judgment set for October 31, 2022 is CONTINUED to December 16, 2022 at 8:30 a.m.  If Plaintiff brings a renewed motion for leave to file a Third Amended Complaint that is granted before that hearing date, the motion for summary judgment will go off-calendar as moot.[1]