Judge David A. Rosen, Case EC068932 2022-09-01 Tentative Ruling

Judge: David A. Rosen, Case: EC068932, Date: 2022-09-01 Tentative Ruling

Case Number: EC068932 Hearing Date: September 1, 2022 Dept: E

Hearing Date: 09/01/2022 – 1:30pm
Case No. EC068932
Trial Date: 02/06/2023
Case Name: STEVEN SPINOGLIO, ET AL. v. SHALINI SAMAGH NICOLAS ET AL.

TENTATIVE RULING ON MOTION FOR LEAVE TO FILE TAC

Moving Party: Plaintiffs, Steven Spinoglio and Denise Amato-Spinoglio, Co-Trustees of the Spinoglio Family Trust (collectively “Plaintiffs”)
Responding Party: Defendants, Shalini Samagh Nicolas and David Nicolas

Proof of Service Timely Filed (CRC Rule 3.1300(c)): ok
16/21 Court Days Lapsed (CCP 1005(b)): ok
Proper Address: ok

Oppo and Reply Submitted

RELIEF REQUESTED
Plaintiffs move for an order granting Plaintiffs leave to amend the operative Second Amended Complaint (“SAC”) and to file the attached Third Amended Complaint (“TAC”).

BACKGROUND ACCORDING TO PLAINTIFFS’ MOVING PAPERS
Plaintiffs’ house sits on a hillside above the house of their downslope neighbors, defendants Shalini Nicolas and David Nicolas (“Defendants”). The ongoing dispute between these neighbors began in the fall of 2017, when Defendants started renovating the pool in their backyard and tearing up the surrounding slopes – stripping the slopes of almost all vegetation, including the portion of one slope owned by Plaintiffs; digging a 20-foot trench up this slope; installing three-inch-diameter, white PVC pipes in the trench and carving a shelf into the top of the slope for a concrete pad so they could relocate their pool equipment from poolside and house it next to a brick-and-wrought-iron fence on Plaintiffs’ property. Defendants did this work without staking the boundaries of their property, submitting plans to the City of Glendale or pulling permits. As a result, three feet of the shelf carved into the top of the slope was dug on Plaintiffs’ property and Defendants installed a sprinkler system on Plaintiffs’ property.

Plaintiffs complained to the City of Glendale, which issued two stop-work orders in November 2017. Work stopped for months. Defendants then retaliated. In February/March of 2018, Defendants removed the PVC pipes from the trench, backfilled the trench, and planted a line of trees along the property lines without any setback so that 13 of these trees were planted on Plaintiffs’ property and the branches facing Plaintiffs’ property on the dozens of other trees in this line encroached onto Plaintiffs’ property.

After this action was filed in August 2018 and the complaint was served, Defendants then used a high-powered, outdoor floodlight as an offensive weapon for months at a time, lighting up the entire eastern face of Plaintiffs’ two-story house all night, every night. In January 2021, Defendants moved their line of trees along the property lines one-to-two-feet downslope after their surveyor confirmed the trees had been encroaching on Plaintiffs’ property for almost three years. Defendants then failed to backfill the holes or compact the soil where the trees were removed, which resulted in heavy rains washing away the soil and leaving a one-to-two-foot vertical cut on Plaintiff’s property across the entire slope.

On January 18, 2021, Defendants installed a bright orange construction fence within inches of the brick and wrought-iron fence near Plaintiffs’ northern property line, where the construction fence served no purpose other than to annoy Plaintiffs. Finally, Defendants then installed a cedar fence along the property lines where the line of trees had previously stood, placing the fence so close to the property line on the eastern boundary of Plaintiffs’ property that seven of the concrete footers for this fence encroach onto Plaintiffs’ property.

The construction fence was installed four weeks before non-expert discovery closed in this case and after Defendants’ depositions had been taken. The cedar fence was installed after the close of non-expert discovery. Documents produced by the City of Glendale in response to two sets of trial subpoenas issued by Plaintiffs’ counsel in February and October 2021, which documents Plaintiffs finally gained access to in March 2022, include myriad emails between defendant Shalini Nicolas and City of Glendale officials related to the cedar fence and construction fence that were not produced in discovery, along with other documents that support Plaintiffs’ proposed Second Cause of Action in the TAC for violation of the City of Glendale’s “spite fence” ordinance.

At the March 7, 2022, hearing in this action, the Court continued the trial to February 6, 2023, as requested by Defendants. At this hearing, Defendants’ counsel finally stipulated to unsealing the documents subpoenaed the previous year from the City of Glendale for trial.

From March through early May 2022, Defendants’ primary attorney in this case, Bryan Roth, took parental leave in connection with the birth of his daughter. In May 2022, the wife of counsel for Plaintiffs moved back to California after nine months living and working on her Ph.D in Houston, Texas. In May and June, Plaintiffs’ counsel was also finishing his training to compete in Ironman France on June 26th. In June, Plaintiff’s counsel and his wife left for France and returned to California after the July 4th holiday. Mr. Roth’s parental leave and the events in the personal life of Plaintiffs’ counsel delayed the filing of this motion (“Motion”), as Plaintiffs’ counsel deemed it improper to seek to amend the operative complaint while Defendants’ primary attorney was on parental leave.

PROCEDURAL BACKGROUND
Plaintiffs filed their initial complaint on August 27, 2018. On July 31, 2020, Plaintiffs filed their First Amended Complaint (“FAC”) alleging three causes of action: (1) Private Nuisance, (2) Trespass, and (3) Breach of CC&Rs. On November 19, 2021, this Court heard argument on Defendants’ Motion for Judgment on the Pleadings of Plaintiffs’ FAC. The Court granted the motion as to all three causes of action with leave to amend.

On November 22, 2021, Plaintiffs filed a Second Amended Complaint (“SAC”) alleging four causes of action: (1) Private Nuisance, (2) Public Nuisance, (3) Trespass, and (4) Breach of CC&Rs. On January 28, 2022, this Court heard argument as to Defendants’ demurrer to the SAC. The Court tentatively stated that the demurrer was overruled as to the first cause of action, sustained with leave to amend as to the third and fourth cause of action, and sustained without leave to amend as to the second cause of action. However, on January 28, 2022, the demurrer was continued to February 4, 2022; therefore, the tentative ruling did not become the order of the Court.

On February 4, 2022, the demurrer to the SAC was argued, and the Court took hearing on the demurrer under submission.

On February 10, 2022, the Court issued its ruling on the submitted matter and ruled that the demurrer was overruled as to the first, third, and fourth causes of action and sustained without leave to amend as to the second cause of action for Public Nuisance.

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.)

PROCEDURAL ANALYSIS

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 included a copy of the proposed amended pleading attached as Exhibit A in Plaintiff’s moving papers. It is serially numbered as “Third Amended Complaint” to differentiate it from the Second 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

In Plaintiffs’ motion on pages 5-10, Plaintiffs state what changes would be made to the SAC in the TAC. Plaintiffs don’t necessarily state what will be deleted, but Plaintiffs indicate what words/phrases/allegations will be replaced.

Further, in Exhibit B of Plaintiffs’ moving papers, Plaintiffs attach a redlined version of the changes that were made from the SAC to the TAC.

(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).)

In Plaintiffs’ motion on pages 5-10, Plaintiffs state what changes would be made to the SAC in the TAC and where certain words/phrases/allegations would be added, replaced, or inserted.

Further, in Exhibit B of Plaintiffs’ moving papers, Plaintiffs attach a redlined version of the changes that were made from the SAC to the TAC.

CRC 3.1324(b)

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

Plaintiffs attached the declaration of Donald E. Chomiak. As a preliminary matter, the Court notes that Plaintiffs do not address the 4 requirements of CRC 3.1324(b) in any type of clear manner in the declaration. Instead, the Plaintiffs include several assertions in the declaration and leave the Court to guess which assertions the Plaintiffs intended to apply to each requirement.

(1) the effect of the amendment;

The declaration does not address the most significant effect of the amendment, which is that Plaintiffs plan to replace their second cause of action for public nuisance in the SAC with a cause of action for “Violation of Glendale Municipal Code §12.04.60” as Plaintiffs’ second cause of action in their TAC.

The closest Plaintiffs get to stating this in their declaration is, “The Court sustained the demurrer as to the public nuisance claim in February 2022 and advised me during the hearing on the demurrer that to bring a new claim on behalf of Plaintiffs, I would have to file a motion.” (Decl. Chomiak ¶6.)

Further, the motion itself states, “The TAC addresses the wrongful conduct connected to the two fences not already addressed in the SAC. The TAC also adds additional details to certain factual allegations regarding damages alleged in the SAC, seeks to recover expert fees under the provisions of the CC&Rs, and corrects typos.” (Pl. Mot. p.4.) However, this statement is not asserted in the Declaration of Plaintiffs’ counsel Chomiak.

(2) why the amendment is necessary and proper;

Chomiak’s declaration does not address this requirement of CRC 3.1324(b)(2).

In Plaintiffs’ moving papers, it states, “Amending the operative complaint is necessary here, because Defendants engaged in actionable conduct long after this lawsuit was filed, and ample time exists between now and trial for the parties to conduct the limited discovery required to have all disputed matters between the parties addressed in a single action. Thus, Defendants will suffer no prejudice if this Motion is granted.” (Pl. Mot. p.10.)

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

It is not entirely clear which assertions in Chomiak’s declaration are intended to apply to the instant element. Presumably, the Plaintiffs are referring to the following:

Plaintiffs’ Motion to Amend the Complaint (“Motion”) is brought primarily to address actionable conduct by defendants Shalini Samagh Nicolas and David Nicolas (“Defendants”) that took place shortly before and after the close of non-expert discovery where Plaintiffs had no opportunity to obtain key documents from the City of Glendale until such documents were produced in response to two sets of trial subpoenas issued by me in February and October of 2021. The documents produced by the City of Glendale were first viewed in March 2022 after counsel for Defendants finally stipulated to the unsealing of the envelopes containing these documents. (Decl. Chomiak ¶2.)

Non-expert discovery in this lawsuit closed on February 15, 2021, in connection with the March 15, 2021, trial date. The construction fencing discussed above was installed 28 days before the close of non-expert discovery and after Defendants’ depositions had been taken. The cedar fencing went up after the close of non-expert discovery. In advance of the March 15, 2021, trial date, Plaintiffs issued trial subpoenas to the City of Glendale seeking documents related to the parties’ respective properties, which would allow Plaintiffs to obtain documents related to the fences for use at trial. Unfortunately, counsel for Defendants declined to allow the parties to access these documents before the first day of trial. (Chomiak Decl ¶3.)

Trial in this action was then continued at least once before November 15, 2021, was set as the next trial date. Plaintiffs again issued trial subpoenas to the City of Glendale and again counsel for Defendants refused to allow the parties to access the responsive documents before the first day of trial. Defendants were then able to obtain a further trial continuance from November 15, 2021, to March 7, 2022, because the primary attorney for Defendants, Bryan Roth, had another trial starting in late November. Then, at a hearing on March 7, 2022, Mr. Roth was able to obtain yet another trial continuance to February 6, 2023, versus April 4, 2022, because Mr. Roth’s wife was expecting a baby a few days before the offered April date. At this hearing, at the request of Plaintiffs’ counsel, Mr. Roth stipulated to Plaintiffs unsealing the documents obtained from the City of Glendale, copies of which documents I then shared with Mr. Roth. (Chomiak Decl. ¶4.)

The documents produced by the City of Glendale provide factual support for a claim for violation of the City of Glendale’s spite fence ordinance. In approving the plans for the cedar fence, the City of Glendale required a setback of one-foot-seven-inches and limited the fence to six feet in height from ground level. The documents produced by the City of Glendale and other evidence demonstrate that Defendants ignored the City’s requirements in connection with the cedar fence and failed to seek the approval of the City of Glendale for the construction fence. (Chomiak Decl. ¶5.)

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

Chomiak’s declaration does not explicitly address this element. Presumably, Chomiak’s reasons are as follows:

From mid-March through early May 2022, Mr. Roth took parental leave in connection with the birth of his child. On March 21, 2022, I sent Mr. Roth an email and received an automatic reply that included, in part, the following: “I am out of the office on parental leave until May 2. I will not be checking email but look forward to connecting upon my return.” Given that Mr. Roth had made it clear during the March 7, 2022, hearing that he is the primary attorney for Defendants on this case, I did not think it would be appropriate for me to pursue any significant matters in this case until after his parental leave concluded. (Decl. Chomiak ¶7.)

In mid-May 2022, after nine months living in Houston, Texas while pursuing an 4 accelerated Ph.D. program in Social Work at the University of Houston, my wife moved out of her apartment in Houston and returned to California. At the same time and into June 6, 2022, I was completing my training to compete in Ironman France on June 26, 2022. My wife and I left for France on June 20th and returned to California after the July 4th holiday. (Chomiak Decl. ¶8.)

FURTHER ANALYSIS AND DEFENDANTS’ POSITION

January 18, 2021 – Orange, fishnet plastic construction fence to cedar fence

Plaintiffs state in moving papers that defendant engaged in new actionable conduct after the filing and service of the complaint, and as discovery closed. On January 18, 2021, four weeks before the close of discovery, Defendants installed a bright orange, fishnet plastic construction fence within six to eight inches of, and along the entire length of Plaintiffs’ brick and wrought-iron fence on the northern boundary of Plaintiffs’ property. Plaintiffs’ fence along the northern border of their property does not include a gate that would enable Plaintiffs to step onto Defendants’ property. So, it is not as if this highly visible construction fence was meant to keep Plaintiffs off Defendants’ property. Rather, its sole purpose was to annoy Plaintiffs. In late February and March 2021, Defendants installed a cedar fence along the property lines, so close that seven of the concrete footers of this fence encroach onto Plaintiffs’ land on the eastern boundary of Plaintiffs’ property. In approving the plans for this fence, the City of Glendale required a setback of one-foot-seven-inches and limited the fence to six feet in height from ground level. The documents produced by the City of Glendale and other evidence demonstrate that Defendants ignored the City’s requirements in connection with both the cedar fence and the installation of the construction fence.

(Pl. Mot. p.1.)

Based on the aforementioned argument in Plaintiffs’ motion and based on the redlined TAC attached to the moving papers, Plaintiffs wish to add allegations about an orange, plastic construction fence that Defendants installed on or around January 18, 2021. Plaintiffs wish to add these allegations to the first and second causes of action. Plaintiffs seem to imply that the facts giving rise to these allegations are new and recently discovered. However, the Court notes that the SAC was filed on 11/22/2021. Plaintiffs would have known of the January 18, 2021, allegations well in advance of the filing of the filing of the SAC on 11/22/2021.

Plaintiffs also state:

Chomiak’s declaration also states:

It appears Plaintiffs claim that they need to amend the SAC filed on 11/22/2021 based on documents to which Plaintiffs first gained access in March 2022. However, the Court fails to see how the documents that Plaintiffs claim to have first seen in March 2022 affect Plaintiffs’ proposed TAC compared to the SAC. Aside from adding additional details to certain factual allegations regarding damages alleged in the SAC, seeking to recover expert fees under the provisions of the CC&Rs, and correcting typos, the primary difference with the TAC from the SAC is that the TAC changes the SAC’s second cause for public nuisance to a second cause of action for “Violation of Glendale Municipal Code §12.04.60 (Spite Fence Ordinance).” The TAC adds factual allegations about events in January 2021 and February 2021, all allegations that would have been known to the Plaintiff when they filed the SAC on 11/22/2021.

Undue Delay
Plaintiffs appear to argue that they did not unduly delay in filling the instant motion on August 1, 2022, because:

Defendants argue that Plaintiffs unduly delayed in seeking leave to amend to add the “new” spite fence claim because Plaintiffs did not ask for leave to amend when the fence was built or when they received documents from the city. Defendants argue Plaintiffs did not act with any diligence, Plaintiffs asserted excuses based on personal obligations, and Plaintiffs delayed in filing this motion because Plaintiffs knew they dismissed the claim with prejudice and the Court already sustained a demurrer to this claim without leave to amend.

Defendants argue as follows:

Although judges should apply a policy of liberality in permitting amendments to pleadings at any stage of the proceeding, including during trial, when no prejudice to the opposing party is shown, an unwarranted delay in presenting the amendment may, of itself, be a valid reason for denial. Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal. App. 4th 1263, 1280; Duchrow v. Forrest (2013) 215 Cal. App. 4th 1359, 1377–1380. Unreasonable delay can be grounds for denying leave to amend if the plaintiff has been dilatory and the delay causes prejudice to the defendant. Winding Creek v. McGlashan (1996) 44 Cal. App. 4th 933, 942. Accordingly, courts have held that a motion for leave to amend must be made promptly on discovery of the need to amend. Record v. Reason (1999) 73 Cal. App. 4th 472, 486–487. Indeed, courts in California have found that even a five-month delay in seeking leave to amend is too long and is an appropriate ground for the court to exercise its discretion to deny leave to amend. See, e.g., Fisher v. Larsen (1982) 138 Cal. App. 3d 627, 649. Courts have also held that leave to amend can be properly denied where the complaint adds causes of action, when the plaintiff did not seek to amend until after the trial readiness conference, the amendment would require additional discovery and perhaps result in a demurrer or other pretrial motion, and the plaintiff offered no explanation for the delay. P&D Consultants, Inc. v City of Carlsbad (2010) 190 Cal. App. 4th 1332, 1345.

Other than the personal reasons discussed above, Plaintiffs have not offered a legitimate explanation for why they waited for nearly a year after discovery of the supposed spite fence claim to file a motion for leave. The California Rules of Court require a party moving for leave to amend to include an attorney declaration that includes, among other things, “the reasons why the request for amendment was not made earlier.” Cal. Rules of Court, rule 3.1324(b)(4). Plaintiffs’ declaration does not address why it could not have, for example, brought this motion four or five months earlier, which would have allowed Defendants time to prepare a summary judgment motion without the need to continue the trial. This failure is not merely procedural; leave is to be granted in the interest of justice, and it is not in the interest of justice to allow leave when the case is already four years old and no real explanation for the delay in seeking leave to amend is offered. Accordingly, Plaintiffs’ Motion should be denied because they delayed in bringing it.

Damages
Plaintiffs argue that in demurring to the SAC, Defendants took the position that Plaintiffs had failed to adequately allege damages in the SAC and that the demurrer should be sustained as a result. Plaintiffs argue that they have expanded the damages allegations in the TAC to address these concerns, but this appears to be more a matter of proof than of pleading.

Res Judicata
On February 4, 2022, the demurrer to the SAC was argued, and the Court took hearing on the demurrer under submission.

In Exhibit D of the Opposition, Opposition attached the transcript from the hearing on February 4, 2022.

Plaintiffs’ counsel, Mr. Chomiak stated:

Your Honor, if I may, we still have yet to discuss one more cause of action in terms of the demurrer. And also, if the court is – if the court overrules the demurrer as to the fourth – sorry – first, third, and fourth causes of action, Plaintiffs will drop the second cause of action and will not seek to amend it or will not seek leave to amend to bring the new claim – what the Court determined to be a new claim.

And if the Court does overrule the demurrer as to the first, third, and fourth causes of action, this trial can go forward on March 7^th. Because the parties have already been to the final status conference once in this case. We’re already there. We just have to – we just have to basically finish this process.

Therefore, Defendants argue: (1) Plaintiffs’ counsel already chose to dismiss the spite fence claim with prejudice, (2) The Court’s ruling sustaining the demurrer to the spite fence claim without leave to amend operates as a final adjudication on the merits as to that claim with res judicata effect, and Plaintiffs cleverly re-named the cause of action as “violation of Glendale Municipal Code section 12.04.60 (Spite Fence Ordinance)” so that they could claim that this was not the same cause of action if Defendants raised the res judicata defense. A side-by-side comparison of the second cause of action for “public nuisance” in Plaintiffs’ SAC against the “new” second cause of action in the proposed TAC show that they are the very same claim based on the same City ordinance.

There are several problems with Defendants’ arguments on res judicata.

First, Defendants’ argument that Plaintiffs’ counsel chose to dismiss the spite fence claim with prejudice is not entirely true. Although Plaintiffs appeared to state at the February 4, 2022, hearing that they would drop the second cause of action and not seek leave to amend, the final order issued on February 10, 2022 stated that the second cause of action for public nuisance was sustained without leave to amend.

Defendants argue:

A dismissal with prejudice is the modern name for a common law retraxit. Robinson v. Hiles (1953) 119 Cal. App. 2d 666, 672. Dismissal with prejudice under section 581 “has the same effect as a common law retraxit and bars any future action on the same subject matter.” Wouldridge v. Burns (1968) 265 Cal. App. 2d 82, 84; Ghiringhelli v. Riboni (1950) 95 Cal. App. 2d 503, 506. Dismissal with prejudice is determinative of the issues in the action and precludes the dismissing party from litigating those issues again. Gagnon Co., Inc. v. Nevada Desert Inn (1955) 45 Cal. 2d 448, 455; Roybal v. University Ford, supra, 207 Cal. App. 3d at 1085–1087; Palmquist v. Palmquist (1963) 212 Cal. App. 2d 340, 343; Sears v. DeMota (1958) 157 Cal. App. 2d 216, 220. Relevant language providing for a plaintiff's voluntary dismissal with prejudice was introduced into section 581 to limit the plaintiff’s leeway to abandon a case and then refile it.” Torrey Pines Bank v. Superior Ct. (1989) 216 Cal. App. 3d 813, 820. The statutory term “with prejudice”

clearly means the plaintiff's right of action is terminated and may not be revived. Roybal v. University Ford, supra, 207 Cal. App. 3d at 1086–1087.

The Court finds the cases that Defendants cited above as inapposite and unpersuasive in the instant context.

Defendants also argue:

[C]onsistent with the Plaintiffs’ dismissal on the record in open court, formally sustained the demurrer to the spite fence claim without leave to amend and with prejudice. See Roth Decl., Exh. E at 1. The Court’s ruling sustaining the demurrer to the spite fence claim without leave to amend operates as a final adjudication on the merits as to that claim with res judicata effect. California courts have long held that “orders sustaining demurrers without leave to amend” effectively “constitute a trial on the merits” and, as such, “must be considered as judgments after trial.” Smith v. City of Los Angeles (1948) 84 Cal. App. 2d 297, 302. Consequently, sustaining a demurrer without leave to amend effectively dismisses that claim with prejudice and California courts have held that “with prejudice,” as that term is used in the context of dismissals, “clearly means the plaintiff’s right of action is terminated and may not be revived.” Roybal v. University Ford (1989) 207 Cal. App. 3d 1080, 1086–1087. (Def. Oppo. p.7-8.)

The Court finds the cases that Defendants cited above as inapposite and unpersuasive in the instant context.

In Reply, as to why Plaintiffs made the statement about dismissing the second cause of action, Plaintiffs state:

As demonstrated below, by the time the parties had reached the initial January 28, 2022, hearing on the Demurrer, there had been at least five trial continuances in this case. At the time, trial was set for March 7, 2022, and Plaintiffs were pushing to keep this trial date.

On January 28, 2022, during the hearing, the Hon. William Stewart held that Plaintiffs could not bring the Second Cause of Action (Public Nuisance) included in the SAC without first filing a motion seeking leave to amend. The tentative order on the Demurrer to the SAC separately called for the sustaining of the Demurrer as to the Third (trespass) and Fourth (violation of the CC&Rs) Causes of Action with leave to amend. On February 4, 2022, Plaintiffs’ counsel argued that the tentative was wrong, that there was no basis to sustain the Demurrer as to these two claims, and that Plaintiffs would not seek leave to amend to bring the claim for public nuisance if the Court overruled the Demurrer as to the first (nuisance), third and fourth causes of action. Plaintiffs’ counsel wanted to ensure the Court did not continue the trial date for purposes of giving Plaintiffs the opportunity to file a motion seeking leave to amend.

There was just one thing Plaintiffs’ counsel did not know on February 4, 2022. Judge Stewart was retiring and leaving the bench on February 28, 2022, seven days before the scheduled trial date in this case. Ignorant of this fact, Plaintiffs’ counsel later went into court on an ex-parte basis on February 22, 2022, to get an order shortening time on the hearing of Defendants’ two new motions in limine and to have Defendants file an answer to the SAC by March 3, 2022, the day before the final status conference, so trial would go forward on March 7th as scheduled. It was not until after Judge Stewart granted Plaintiffs’ ex parte application that he said the following: “Well, I don’t know if you will go on the seventh. The new guy will have to figure that out.”

At no time during the January 28, 2022 or February 4, 2022 hearing on the Demurrer did Judge Stewart advise counsel for the parties that he was leaving the bench a month later, seven days before the scheduled trial date. Had Plaintiffs’ counsel been aware of this fact, he would have concluded that there was no way this case was going to trial on March 7, 2022. Had Judge Stewart been forthcoming regarding the timing of his impending retirement, Plaintiffs’ counsel would never have made the statement Defendants now cling to in opposing the Motion. Plaintiffs contend that denying the Motion on the basis of this statement would be unjust.

Ultimately, Defendants cite no case law that supports their proposition – that just because Plaintiffs agreed in court at the 2/4/2022 hearing to drop the second cause of action for public nuisance and not seek leave to amend before the final ruling was issued on 2/10/2022– that Plaintiffs’ statement essentially defeats this Motion.

Defendants point out how the Court sustained without leave to amend Plaintiffs’ second cause of action for public nuisance. Defendants thus argue that even though Plaintiffs cleverly try to rename the public nuisance claim as “Violation of Glendale Municipal Code section 12.04.60 (Spite Fence Ordinance)” should be dismissed on demurrer based on the doctrine of res judicata.

Defendants state the following with no citations, “Res judicata describes the preclusive effect of a final judgment on the merits. Res judicata, or claim preclusion, prevents the re-litigation of the same cause of action in a second suit between the same parties or parties in privity with them. Under this doctrine, all claims based on the same cause of action must be decided in a single suit; if not brought initially, they may not be raised at a later date.” Based on the Defendants’ own uncited description of res judicata, res judicata would not be applicable in the instant scenario because there has been no final judgment on the merits in this case.

Defendants also cite to Garcia v. Garcia (1957) 148 Cal. App. 2d 147, 152, and argue it held that a claim can be dismissed under the doctrine of res judicata at the demurrer stage. Garcia held that where a former husband, by property settlement agreement included in an interlocutory divorce decree, agreed that during his relationship with his wife, and as a result thereof, there was born to said parties a certain child, and he therein agreed to support said child, as between former husband and his former wife, issue of parentage of said child was determined by such divorce action and could not be raised again by former husband in action for declaration of no paternity relationship between him and said child. Defendants citation to Garcia is not on point as there has been no prior case or prior settlement agreement that was used in a prior case.

Reconsideration

Defendants argue that “Plaintiffs could have (but elected not to) seek reconsideration of the order sustaining the demurrer to the second cause of action without leave to amend. Accordingly, this Motion is nothing more than a veiled and belated attempt at reconsideration of the Court’s prior order dismissing this claim with prejudice.” (Def. Oppo. p.8.)

The Court does not find Defendants’ argument persuasive.

Defendants’ Third Argument for Denial of Motion

Defendants’ argue this motion should be denied because “…the case is already four years old. The action was filed on August 27, 2018. Allowing an amended pleading to be filed would likely require another continuance of the trial, which no parties really want here; it is time for this case to be tried.” (Def. Oppo. p.3.)

The Court does not find this argument persuasive.

Defendants’ Fourth Argument for Denial of Motion/Prejudice

“Fourth, Plaintiffs have not offered legitimate explanation for why they waited for nearly a year after discovery of the supposed spite fence claim to file a motion for leave. Plaintiffs filed this Motion on August 1, 2022 and set a hearing date of August 28, 2022. Plaintiffs have filed and scheduled the Motion in a way that would give Defendants a matter of weeks or maybe a month, at best, to prepare a motion for summary judgment on this newly added claim. That would be unfair to Defendants and would ultimately necessitate another continuance of trial, which the Court should be unwilling to entertain at this point. The California Rules of Court require a party moving for leave to amend to include an attorney declaration that includes, among other things, “the reasons why the request for amendment was not made earlier.” Cal. Rules of Court, rule 3.1324(b)(4). Plaintiffs’ declaration does not address why it could not have, for example, brought this motion four or five months earlier, which would have allowed Defendants time to prepare a summary judgment motion without the need to continue the trial. This failure is not merely procedural; leave is to be granted in the interest of justice, and it is not in the interest of justice to allow leave when the case is already four years old and no real explanation for the delay in seeking leave to amend is offered.” (Def. Oppo p. 3-4.)

Further, Defendants argue, “Plaintiffs’ Motion should also be denied because Defendants will be unduly prejudiced if it is granted. “Although 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, this policy should be applied only [w]here no prejudice is shown to the adverse party.” Magpali v. Farmers Grp., Inc. (1996) 48 Cal. App. 4th 471, 487. Defendants have spent hundreds of thousands of dollars defending this case. Discovery has already closed. Defendants have prepared for trial more than once. They did all of this based on their understanding that the pleadings were set and that the case was proceeding to trial, not that Plaintiffs would try to inject new claims they openly dismissed and agreed to not to re-assert at the last moment.”

In Reply Plaintiffs argue:

Defendants claim that they will suffer undue prejudice if the Motion is granted. This alleged prejudice boils down to three statements: (1) Defendants have spent a lot of money defending this case; (2) Defendants have prepared for trial more than once; and (3) it would be unfair to Defendants if the Motion is granted because Defendants would only have about a month to bring a motion for summary adjudication (“MSA”) as to the new claim. Only the third element here could remotely constitute prejudice and this alleged prejudice is easily remedied. Plaintiffs will stipulate to Defendants filing a MSA as to the new claim with a 45- calendar-day notice period versus the statutory 75-day notice period, with the opposition to be filed 14 days before the hearing and the reply filed seven days before the hearing with all papers to be served electronically via email. Under this proposed stipulation, Defendants’ MSA could be filed as late as mid-November. Thus, there is no prejudice to Defendants.

Further in Reply, Plaintiffs argue:

Defendants chose to engage in actionable conduct four weeks before the close of discovery in this case and after the close of discovery. Defendants’ counsel then chose to keep the communications between Defendants and the City of Glendale related to this actionable conduct beyond the reach of Plaintiffs’ counsel for a year by refusing to consent to the City of Glendale document productions being unsealed before the first day of trial. It was only after Defendants were granted yet another long trial continuance on March 7, 2022, and Plaintiffs’ counsel raised the status of the City of Glendale documents with the Court, requesting that these subpoenaed documents be released, that Defendants stipulated to the unsealing of the envelopes containing the documents. Defendants’ plea of prejudice is undermined by Defendants’ conduct and should be ignored. To hold otherwise would reward Defendants’ wrongful conduct.

Defendants’ Fifth Argument for Denial of the Motion

“Fifth, the proposed spite fence claim is frivolous. Although Plaintiffs assert that they have now amassed substantial new evidence that supports their purported spite fence claim, in reality, this Motion, which is supposed to set forth, among other things, why amendment is necessary and proper (Cal. Rules of Court, rule 3.1324(b)(2)), focuses almost exclusively on the fact that Defendants purportedly ignored the City’s requirements on the setback and height of the fence and that they did not get approval from the City to erect the temporary fence that was later replaced by the same beautiful red cedar fence that undoubtedly has increased the values of both properties. These assertions are completely belied by the record and are flat wrong. The fence is on Defendants’ property and is six feet tall. There is nothing improper about that. But more importantly even if accepted as true Plaintiffs’ allegations do not support a spite fence claim.” (Def. Oppo. p.4.)

The Court notes that this argument is outside the scope of the instant motion.

Defendants’ Repetitive Sixth Argument for Denial of the Motion
“[D]efendants will be unfairly prejudiced if the Court grants the Motion. Defendants have spent hundreds of thousands of dollars defending this case. Discovery has already closed. Defendants have prepared for trial more than once. They did all of this based on their understanding that the pleadings were set and that the case was proceeding to trial, not that Plaintiffs would try to re-inject causes of action that have been dismissed with prejudice.” (Def. Oppo. p. 4.)

In Reply, Plaintiffs argue:

Defendants’ Seventh Argument for Denial of the Motion

“Seventh, even allowing for the possibility that Plaintiffs’ modest evidentiary showing is indeed indicative of malintent by Defendants, Plaintiffs have offered no explanation why they have not made additional substantial efforts to gather evidence and make a stronger showing for the Motion. Reasonable litigants in Plaintiffs’ shoes who truly believed that the evidence uncovered supported a claim for spite fence would have acted with greater diligence in the coming months to support their theory. Of course, the reason why no attempt was made to bolster the record is because Plaintiffs dismissed this claim with prejudice and agreed never to re-assert it. Apparently having remorse about their decision, Plaintiffs now ask the Court to reverse the course of history and prior binding rulings to allow this illegitimate claim to become part of the case.” (Def. Oppo. p.4-5.)

This argument is unpersuasive.

Miscellaneous

Defendants frame the background as follows:

On October 15, 2021, Defendants filed a motion for judgment on the pleadings (“MJOP”) as to Plaintiffs’ First Amended Complaint (“FAC”). Roth Decl., ¶ 2. The FAC asserted three causes of action for private nuisance, trespass and breach of contract. Id. On November 19, 2021, the Court heard argument on Defendants’ MJOP and granted the MJOP in its entirety, giving Plaintiffs leave to amend, but only as to the existing causes of action in the FAC. Id.

It is by no means clear that Defendants’ assertion is correct. The Court granted the MJOP to the FAC as to all causes of action and granted leave to amend to all causes of action. The Court did not explicitly state it was only granting leave to amend as to the existing causes of action in the FAC. The 11/19/2021 Minute Order stated, “The motion for judgment on the pleadings is granted with leave to amend.”

Defendants further state:

On November 22, 2021, Plaintiffs’ filed their SAC. Roth Decl., ¶ 3, Exh. A. Surprisingly, Plaintiffs added a new cause of action to the SAC which was styled as a “public nuisance” claim under the Glendale Municipal Code Section 12.04.060 for the alleged construction of a spite fence. Id., Exh. A at ¶¶ 45-51. The claim alleged, among other things, that in February 2021, Defendants “installed a six-foot-tall cedar fence along the northern and eastern boundaries of Plaintiffs’ property where the line of trees previously stood.” Id. at ¶ 46. Plaintiffs claim that Defendants installed the fence primarily to annoy Plaintiffs. Id.

On December 22, 2021, Defendants filed a demurrer to the SAC, pointing out among other things that Plaintiffs did not fix any of the fatal pleading errors raised by the prior MJOP. Roth Decl., ¶ 4. Moreover, as pertinent to this Motion, Defendants also argued that Plaintiffs could not add the new spite fence claim because the Court did not expressly give Plaintiffs leave to amend to add that claim. Id. The Court issued a tentative ruling to sustain the demurrer with leave to amend as to the breach of contract and trespass claims and to sustain without leave to amend as to the new second cause of action for public nuisance based on the Glendale Municipal Code spite fence provision because, as the Court acknowledged, the Court did not give Plaintiff leave to assert that cause of action when it gave leave to amend. Id., Exh. B at 2.

On January 28, 2022, the Court heard argument on Defendants’ demurrer to the SAC. At the hearing the Court asked whether or not the second cause of action was “not a new cause of action” and Plaintiffs’ counsel stated that “it is simply a reframing of the original cause of action – it’s a spite fence claim.” Roth Decl., ¶ 5, Exh. C at 9:10-14 (emphasis added). Later in the hearing Plaintiffs’ counsel stated that the cause of action is “labeled public nuisance, but it is based on a Glendale ordinance that concerns a private right regarding spite fence.” Id. at 11:16-18. The Court continued the hearing to February 4, 2022.

On February 10, 2022, the Court issued a final ruling on submitted matter re demurrer. Roth Decl., ¶ 7, Exh. E. The ruling stated that “the demurrer is overruled as to the first, second and fourth causes of action, and is sustained without leave to amend as to the second cause of action.” Id. at 1 (emphasis added). Plaintiffs did not seek reconsideration of the Order dismissing their spite fence claim with prejudice and without leave to amend. Id

With respect to the second cause of action for public nuisance, the following was in the 1/28/2022 Minute Order for the hearing on the demurrer to the SAC. Remember, however, that after argument, the Court continued the 1/28/2022 hearing to February 4, 2022, and then took it under submission, and did not rule on it until February 10, 2022.

Minute Order 1/28/2022
“Merits-Second Cause of Action (Public Nuisance)

Defendants argue that the second cause of action is improperly brought, as the Court did not grant Plaintiffs leave to allege a new cause of action, and that the newly alleged second cause of action is not within the scope of the Court's grant of leave to amend.

In opposition, Plaintiffs argue that the public nuisance cause of action responds to the Court's order and is based on facts previously alleged concerning private rights.

On review of the SAC, and the Court's November 18, 2021, tentative ruling on Defendants' MJOP that resulted in the leave to amend authorizing the filing of the SAC, the Court cannot locate any language authorizing Plaintiffs to file a new public nuisance cause of action. Although Plaintiffs argue that they were responding to the Court's order, the Court's simple statement of deficiency on a pleading does not equate to an authorization to file a new cause of action.

The Court will thus sustain the demurrer as to the second cause of action, sounding in public nuisance, without leave to amend.”

(Minute Order 1/28/2022 p.2-3.)

However, the following is from the transcript from the 1/28/2022 hearing that Defendants attached in their declaration as Exhibit C:

The Court: As to the second, are you saying it’s not a new cause of action?

Mr. Chomiak: My argument, your honor, is it is simply a reframing of the original cause of action—it’s a spite fence claim. And I can demonstrate that in the facts that are alleged in both complaints. And I’d like the opportunity to do so.

(Def. Ex. D, p.9.)

…

The Court: Oh, Spite. But the previous time you didn’t have leave to add a new cause of action.

Mr. Chomiak: But really is not a new cause of action, your honor, but again – would you like – I can go to that cause of action now if you’d like.

The Court: Why is it not new?

Mr. Chomiak: All right. Your Honor, I’m – let’s discuss the third cause – or second cause of action first.

(Def. Ex. D., p.9.)

…

The Court: In the second amended complaint, labeled public nuisance.

Mr. Chomiak: Yes, your Honor. It’s exactly labeled public nuisance.

The Court: Well—

Mr. Chomiak: Your Honor, it’s labeled public nuisance, but it is based on a Glendale ordinance that concerns a private right regarding spite fence.

The Court: What you need to do, then, is file a motion to file an action for public nuisance.

Mr. Chomiak: Your Honor, it’s labeled a public nuisance claim, but the gist of it, the gravamen of the claim is a spite fence claim which is exactly what the claim about the line of trees was in the first amended complaint. It was a spite fence claim. The Courts said that there’s no common law or contractual basis for it. Plaintiffs found an ordinance that supports it.

The Court: Let me find out. Let me find out. Mr. Roth, do you agree with what counsel just –

Mr. Roth: Your Honor, I don’t agree. And I think the tentative hit it spot-on on this one. It’s a new claim. It’s an entirely new claim. They weren’t given leave in any order to file a new claim. Technically, I guess, they could ask for leave to do so, but they didn’t do that. I think it’s much too late in the case for them to do that. I mean, it’s three years old. We’re ready to move forward with adjudication as it’s the legally cognizable claim that can be made. But they weren’t given leave to add this claim. It’s an entirely new claim. That’s patently unfair at this stage of the litigation. And that’s our position.

Mr. Chomiak: Your Honor, this—

The Court: Wait. Wait. Wait. I don’t know if it’s unfair or not. But we don’t get down to the evidence or to the granular details when you give it a different label. That’s part of your intent. That’s part of your pleading and what you’re trying to do. You must file a motion. Whether it be granted or not, I can’t say. I don’t see any prejudice but – I mean, these people are just going to be fighting until the world comes to an end, I think.

(Def. Ex. D., p. 11-12.)

….

The Court: While the case is in state court, we’re not going to follow the federal rules about pleading and motions to dismiss and all of that sort of stuff. We’re going to stick with the state rules here. You’ve got to file a motion if you want to have a public nuisance claim. Period. That’s –

Mr. Chomiak: All right, your honor. I’ll move on.

(Dec. Ex. D., p.14.)

At the next hearing, on 2/4/2022, Plaintiffs mentioned dismissing the second cause of action and that they wouldn’t seek leave to amend.

However, the 2/10/2022 Minute order simply said the demurrer to the second cause of action in the SAC for public nuisance was sustained without leave to amend.

Presumably, based on the transcript from the 1/28/2022 hearing, the Court was planning to sustain the demurrer as to the second cause of action for public nuisance in the SAC because when the Court granted the MJOP to the FAC as to all three causes of action [(1) private nuisance, (2) trespass, (3) breach of contract] the Court did not give leave to amend as to a public nuisance claim because it was not in the FAC.

Therefore, it appears that Plaintiffs are now trying to file the motion to amend so they can add what they called a public nuisance claim in the SAC that the court mentioned at the 1/28/2022 hearing that they did not have leave to amend to allege, but which they now wish to title a violation of Glendale municipal code, based upon the alleged spite fence, in the TAC.

Further, Opposition’s declaration notes in Paragraph 7 that “Plaintiffs did not seek reconsideration of the Order dismissing their spite fence claim with prejudice and without leave to amend.” Opposition’s reference to the spite fence claim is the second cause of action for public nuisance. Technically, the Court did not state that it dismissed the second cause of action with prejudice. Instead, the Court sustained the demurrer without leave to amend as to the second cause of action for public nuisance.

Finally, in Reply, Plaintiffs argue that Defendants concede certain facts because Defendants didn’t challenge the evidence presented.

The Court notes that Plaintiffs’ contention is incorrect. This hearing has nothing to do with fact finding.

Also in Reply, Plaintiffs further note:

In addition to the new claim for violation of Glendale’s “spite fence” ordinance, the proposed TAC also modifies the First, Third and Fourth Causes of Action. See the redline version of the TAC, which is Exhibit B to the Motion. The TAC also corrects some typos and makes other minor changes in the body of the document. Defendants only attack the new claim and raise no objections to these other changes to the operative complaint. Should the Court deny the Motion as to the proposed Second Cause of Action, Plaintiffs request that the Court otherwise grant the Motion as to the other proposed changes incorporated in the TAC, as Defendants have raised no objections to the other proposed changes.

TENTATIVE RULING

Motion for leave to file Third Amended Complaint is GRANTED. The proposed TAC is deemed filed and served. Defendants shall respond to the TAC within 20 days.