Judge Cynthia A Freeland, Case 37-2021-00013750-CU-OR-NC 2023-12-22 Tentative Ruling

Judge: Cynthia A Freeland, Case: 37-2021-00013750-CU-OR-NC, Date: 2023-12-22 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

SOUTH BUILDING TENTATIVE RULINGS - December 21, 2023

12/22/2023 01:30:00 PM N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited Other Real Property Motion Hearing (Civil) 37-2021-00013750-CU-OR-NC SIDDIQUE VS VOGEL [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Leave to Amend, 11/30/2023

Plaintiff/Cross-Defendant Nayyar Siddique ('Plaintiff')'s motion for leave to file a Second Amended Complaint ('SAC') is granted.

As an initial matter, the court will not deny the motion as untimely. California Code of Civil Procedure ('CCP') § 1005(b) provides in pertinent part that 'all moving and supporting papers shall be served and filed at least 16 court days before the hearing.' Cal. Code Civ. P. § 1005(b). When, as here, service is accomplished electronically, the notice period is extended by two court days. See Cal. Code Civ. P. § 1010.6(a)(3)(B). In this case, Plaintiff's counsel electronically served Defendants Rainer Vogel, Claudia Vogel, and Mamika LLC (collectively, 'Defendants')'s counsel with the moving papers on November 30, 2023. See ROA No. 385. However, to effectuate Code-compliant service, Plaintiff needed to have served Defendants with the moving papers by no later than November 28, 2023. While Defendants are correct that the foregoing constitutes grounds for the court to exercise its discretion and deny the motion, the court declines to do so in this instance because Defendants have not demonstrated any resulting prejudice. See, e.g., Gonzalez v. Santa Clara County Dept. of Social Services (2017) 9 Cal. App. 5th 162, 168.

CCP § 473 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 . . . .' Cal. Code Civ. P. § 473(a)(1). Leave to amend is liberally allowed. See Bettencourt v. Hennessy Industries, Inc. (2012) 205 Cal. App. 4th 1103, 1111. The court must apply this policy of great liberality 'at any stage of the proceedings,' absent prejudice to the adverse party. See Atkinson v. Elk Corp. (2003) 109 Cal. App. 4th 739, 761. 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. See Magpali v. Farmers Group, Inc. (1996) 48 Cal. App. 4th 471, 486-488. An unwarranted delay in presenting a proposed amendment, resulting in prejudice to the opposing party, is also a valid reason for denial. See Hirsa v. Sup. Ct. (1981) 118 Cal. App. 3d 486, 490.

The court finds that Plaintiff has demonstrated good cause for leave to amend. In this case, Plaintiff seeks leave to amend to add an eleventh cause of action for declaratory relief against all Defendants.

More specifically, the SAC alleges that an actual controversy exists between the parties concerning their respective rights and duties under the CC&Rs, relevant statutes and ordinances, and the agreements between the parties. Toward that end, Plaintiff seeks a judicial determination of the following: (a) that the parties agreed by oral contract and their course of conduct, conditioned on equivalent treatment of the other, to allow each party to construct new structures and modify existing structures Calendar No.: Event ID: TENTATIVE RULINGS

3050426 CASE NUMBER: CASE TITLE: SIDDIQUE VS VOGEL [IMAGED] 37-2021-00013750-CU-OR-NC within the portion of the Common Area on that party's respective side (north/south) of the Condominium Property, (b) that the parties had an express verbal agreement amending the CC&Rs to allow each party to construct new structures and modify existing structures within the portion of the Common Area on that party's respective side (north/south) of the Condominium Property; (c) that the parties had an implied-in-fact contract amending the CC&Rs to allow each party to construct new structures and modify existing structures within the portion of the Common Area on that party's respective side (north/south) of the Condominium Property; (d) that Defendants failed to obtain Plaintiff's prior written consent before their construction in the Common Area; (e) that Defendants failed to obtain building permits from the City of Encinitas and/or the California Coastal Commission prior to constructing in the Common Area; (f) that if no reciprocal agreement exists for the parties' respective construction in the Common Area (i.e. all construction outside of the Units), Defendants' construction in the Common Area conduct is in violation of the CC&Rs and is an unreasonable obstruction of the Siddique Unit, including that it occupies Common Area owned by Plaintiff and interferes with Dr. Siddique's ownership, use, and enjoyment of his life and property.

See SAC, ¶ 183. The SAC alleges that a judicial determination is necessary to determine the parties' respective rights and responsibilities as to their use of the Condominium Property and the Common Area therein. Ibid., ¶ 184. This overlaps with the request for declaratory relief contained within Mamika LLC ('Mamika')'s First Amended Cross-Complaint (the 'FACC') wherein Mamika seeks a judicial determination as to the parties' respective rights and responsibilities under the CC&Rs, including the parties' use of the Condominium Property and the Common Area therein. See Mamika's FACC, ¶¶ 29-30. The court agrees with Plaintiff that the existence of an oral or implied-in-fact contract between the parties, including the parties' respective rights thereunder, can properly be brought as a declaratory relief cause of action as it undoubtedly would be the subject of any potential defense by Plaintiff to Mamika's declaratory relief claim.

The court respectfully must disagree with Defendants that Plaintiff is seeking leave to amend, in essence, to perform an end-run around the court's October 24, 2023 Order granting Mamika's motion in limine ('MIL') #5. See ROA No. 358. MIL #5 was, in essence, an objection to the introduction of any evidence in support of Plaintiff's seventh cause of action for breach of contract on the ground that it failed to state facts sufficient to constitute a cause of action. The seventh cause of action was predicated upon an alleged agreement by which all parties verbally or impliedly consented to the other parties' construction on the Common Area on each of their respective sides of the Condominium Property notwithstanding express pronouncements in the CC&Rs to the contrary. The 'breach' alleged by way of the seventh cause of action was Mamika's filing of its Cross-Complaint against Plaintiff. The court, in granting MIL #5, ultimately concluded that Mamika's filing of its Cross-Complaint was protected by California Civil Code § 47(b)'s litigation privilege and thus could not form the basis of a viable breach of contract claim. This finding, however, does not render the proposed declaratory relief claim derivative or duplicative of the seventh cause of action. More specifically, the eleventh cause of action is not predicated on a specific 'breach' of an express or implied-in-fact oral contract; rather, Plaintiff is merely seeking a determination of the parties' respective rights as to such an agreement (provided one exists in the first place).

Defendants' contention that permitting the proposed amendment would be prejudicial because it would materially prejudice them is unavailing. Toward that end, the court must respectfully disagree with Defendants that Plaintiff is seeking to include new factual allegations and/or legal theories that were not included in his prior pleadings. For example, Plaintiff's First Amended Complaint (the 'FAC') contained numerous allegations concerning the existence of an express or implied-in-fact oral contract between the parties. See FAC, ¶¶ 85, 88-89. That being said, Defendants provide no evidence that they will be prejudiced by granting leave to amend given that the discovery cutoff date has passed because, simply put, they have not demonstrated that additional discovery is necessary in the first place. As Plaintiff notes, aside from the allegations contained in the FAC, Plaintiff's discovery responses dating back roughly two years put Defendants on notice of Plaintiff's allegations concerning an alleged express or implied-in-fact oral agreement between the parties regarding construction in the Common Area of the Condominium Property. See Aannestad Reply Decl., Ex. A. More recently, both Plaintiff and the Vogels Calendar No.: Event ID: TENTATIVE RULINGS

3050426 CASE NUMBER: CASE TITLE: SIDDIQUE VS VOGEL [IMAGED] 37-2021-00013750-CU-OR-NC testified at their respective depositions in February 2023 as to the alleged oral agreement between them.

Ibid., Exs. B-D. Defendants do not identify what additional discovery, if any, would be necessary as to the allegations set forth in the proposed SAC. Similarly, while Defendants are correct that an unwarranted delay in seeking leave to amend is sufficient cause to deny the motion, as explained above, Defendants have been on notice as to the facts set forth in the SAC. Moreover, the court sees Plaintiff's proposed eleventh cause of action as the flip side of, and therefore duplicative of, Mamika's declaratory relief claim.

In light of the foregoing, the court grants Plaintiff's motion for leave to amend. Plaintiff shall file and serve the SAC within five (5) days of this hearing.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, December 22, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of December 22, 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.

Calendar No.: Event ID: TENTATIVE RULINGS

3050426