Judge: Cynthia A Freeland, Case: 37-2017-00010745-CU-OR-NC, Date: 2023-08-11 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - August 10, 2023

08/11/2023  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  Other Real Property Motion Hearing (Civil) 37-2017-00010745-CU-OR-NC COURTOIS VS. BANK OF AMERICA NA [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 07/18/2023

Plaintiff Kristi J. Courtois ('Plaintiff')'s motion for leave to file a Second Amended Complaint (the 'SAC') is denied.

On February 20, 2019, Plaintiff filed her First Amended Complaint (the 'FAC'). See ROA No. 201. On December 4, 2020 the court partially granted Defendant's motion for judgment on the pleadings. See ROA No. 503. In relevant part, the court granted Defendant judgment on the pleadings as to Plaintiff's fourth cause of action for violations of the UCL and eighth cause of action for breach of confidence with leave to amend. The court gave Plaintiff until January 4, 2021 to file and serve a further amended pleading. She failed to do so. On February 17, 2023 – over two years after the court first granted Plaintiff leave to amend – Plaintiff filed a motion for leave to amend. See ROA No. 625. On April 7, 2023, the court granted the motion and directed Plaintiff to file and serve a further amended pleading by April 17, 2023. See ROA No. 653. She failed to do so. On June 23, 2023, Defendant filed a renewed motion for summary judgment as to Plaintiff's negligence cause of action in light of the California Supreme Court's recent decision in Sheen v. Wells Fargo Bank N.A. (2022) 12 Cal. 5th 905. See ROA No. 654. The hearing on Defendant's summary judgment motion is set for October 6, 2023. On July 18, 2023, Plaintiff filed the present motion wherein she again seeks leave to file a further amended complaint. See ROA No. 667. Against this backdrop, the five-year statutory deadline to bring this case to trial was March 24, 2022 but was extended to October 20, 2023 owing to an earlier appeal in the case. Trial is currently set for October 13, 2023.

The present motion, styled as a 'Motion to Late File Second Amended Complaint Under CCP § 473(b),' is more appropriately construed as a motion to excuse Plaintiff's failure to comply with the court's April 7, 2023 order and now permit her to file her proposed SAC. Toward that end, Mr. Freshman has submitted an affidavit of attorney fault under which he represents that his office failed to file the SAC as instructed by the court because he did not receive a copy of the court's April 7, 2023 minute order. Mr. Freshman's office has internal procedures for proceeding once notice of a ruling is received; however, he contends that, in this instance, no such notice was received. Mr. Freshman accepts responsibility for this failure.

The court takes issue with Mr. Freshman's assertions to the extent he argues that the court failed to provide notice of the ruling on Plaintiff's motion for leave to amend. As Mr. Freshman acknowledges in his declaration in support of the pending motion, the court's April 6, 2023 tentative ruling plainly states that '[i]f no party appears at the hearing, this tentative ruling will become the order of the court as of April 7, 2023. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.' See ROA No. 652; Freshman Decl., ¶ 6. No parties appeared at the April 7, 2023 hearing and thus the court's tentative ruling became the order of the court. Regardless of Calendar No.: Event ID:  TENTATIVE RULINGS

2998968 CASE NUMBER: CASE TITLE:  COURTOIS VS. BANK OF AMERICA NA [IMAGED]  37-2017-00010745-CU-OR-NC whether notice was mailed to Mr. Freshman, it was incumbent upon him to review the Register of Actions to ascertain the outcome of the hearing, particularly given his conscious decision not to attend the hearing on his own motion. Moreover, Plaintiff clearly had notice of the ruling as counsel discussed its contents via e-mail.

The court finds that Plaintiff has failed to demonstrate entitlement to the relief requested. As set forth in the motion, Plaintiff seeks an order permitting her to file the SAC under CCP § 473(b)'s 'mandatory' or 'attorney fault' provision. As the parties are aware, CCP § 473(b) contains two separate means for obtaining relief from judgment entered as a result of mistake, inadvertence, surprise, or neglect. See Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal. App. 4th 215, 224-225. CCP § 473(b)'s attorney fault provision is a narrow exception to the discretionary prong and is designed to alleviate hardship to litigants who lose their day in court owing to their attorney's inexcusable failure to act. Ibid., at 226 (quoting Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal. 4th 248, 257). More specifically: [T]he court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.

Cal. Code Civ. P. § 473(b).

That being said, the court finds that CCP § 473(b) does not apply to the present circumstance. The statutory language makes clear that a party can avail himself or herself of the protections of CCP § 473(b)'s attorney fault provision to relieve himself or herself from: (1) a default entered by the clerk that will result in entry of a default judgment, or (2) a resulting default judgment or dismissal. Toward that end, the court has not entered a default, default judgment, or dismissal against Plaintiff. Indeed, no judgment, dismissal, order, or other proceeding has been taken against Plaintiff. See Shayan v. Spine Care & Orthopedic Physicians (2020) 44 Cal. App. 5th 167, 170 ('More recent cases hold that the provision for mandatory relief does not apply absent an actual default, default judgment or dismissal.

This is probably the better view, since CCP § 473(b) refers only to 'defaults' and 'dismissals.''). As explained above, the court simply granted Plaintiff leave to file a SAC by April 17, 2023, and she failed to do so. Accordingly, the court finds that CCP § 473(b) does not apply.

To the extent the motion can be construed as one seeking leave to amend under CCP § 473(a)(1), it must be denied as procedurally deficient. 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. R. Ct. 3.1324(a). In addition, the motion must be accompanied by a separate declaration specifying: (1) The effect of the amendment; (2) Why the amendment is necessary and proper; Calendar No.: Event ID:  TENTATIVE RULINGS

2998968 CASE NUMBER: CASE TITLE:  COURTOIS VS. BANK OF AMERICA NA [IMAGED]  37-2017-00010745-CU-OR-NC (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.

Cal. R. Ct. 3.1324(b).

In this case, the motion does not comply with California Rules of Court ('CRC'), Rule 3.1324(a) because: (1) the SAC attached as Exhibit 4 to Mr. Freshman's declaration is not serially numbered to differentiate it from the FAC, and (2) the motion fails to articulate what allegations are proposed to be added and/or delated with reference to the appropriate page, paragraph, and line number. Moreover, the motion does not conform to CRC, Rule 3.1324(b)'s requirements because Mr. Freshman's declaration does not specify: (1) the effect of the proposed amendment(s); (2) why the amendment(s) are necessary and proper; and (3) when the facts giving rise to the amended allegations were discovered.

Additionally, even if the motion could properly be construed as a procedurally sufficient motion for leave to amend, the court nevertheless would deny it given that Defendant has demonstrated significant resulting prejudice. See Atkinson v. Elk Corp. (2003) 109 Cal. App. 4th 739, 761 (the court must apply a policy of great liberality in permitting amendments 'at any stage of the proceedings,' absent prejudice to the adverse party); Magpali v. Farmers Group, Inc. (1996) 48 Cal. App. 4th 471, 486-488 (prejudice exists where the amendment would result in a delay of trial, along with loss of critical evidence, added costs of preparation, or an increased burden of discovery). More specifically, this case is up against the five-year dismissal statute. If Plaintiff were to be permitted leave to file a Second Amended Complaint, the case no longer would be at issue and would not be at issue until September 11, 2023, at the earliest, and even that assumes the new pleading is personally served on August 11, 2023, and assumes Defendant files an answer, not a demurrer, thirty days later. An amended pleading at this point would mean either that the case could not proceed to trial before the five-year mark, which would require dismissal of the case, or that Defendant will not have ample time to conduct discovery on the proposed causes of action and bring a new summary judgment motion or other dispositive motion, effectively depriving Defendant of due process.

In light of the foregoing, the court denies the motion. This ruling is without prejudice to Plaintiff seeking leave to amend to conform to proof at trial.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, August 11, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of August 11, 2023. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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