Superior Court of California 

County of Los Angeles – West District 

Beverly Hills Courthouse / Department 205 

 

 

 

BACKGROUND 

This case arises from a dispute over an easement.  Plaintiff Bruce D. Mansdorf, as trustee of the Bruce D. Mansdorf Living Trust dated July 25, 2008, is the owner of property located at 1380 Monument Street, Los Angeles, California (“Plaintiff’s Property”).  Defendant Frances Ontkean owns the property adjoining Plaintiff’s Property, located at 1386 Monument Street, Los Angeles, California (“Defendant’s Property”).  Plaintiff claims an easement over Defendant’s Property.  The operative complaint alleges claims for (1) quiet title, and (2) declaratory relief.  This hearing is on Plaintiff’s motion for leave to amend to add a claim for reformation of contract as well as to add Bruce Mansdorf as an individual defendant.  This hearing is also on Defendant’s motions (1) to permit filing of a verified cross-complaint, (2) for summary judgment, and (3) for an order pursuant to Code Civ. Proc. Sections 765.010-765.060 for filing a lawsuit with the intent to harass.       

MOTION TO AMEND COMPLAINT 

Code of Civ. Proc. § 473(a)(1), provides, in relevant part: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer.¿ The court may likewise, in its discretion, 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.”¿¿ 

Under California Rules of Court Rule, Rule 3.1324, subdivision (a),¿a motion to amend a pleading shall:¿¿ 

(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.¿¿¿ 

 

In addition, under California Rules of Court, Rule 3.1324, subdivision (b),¿a¿separate 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 reasons why the request for amendment was not made earlier.¿¿ 

 

The Court’s discretion to grant leave “should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.”¿ (Kittredge Sports Co. v. Superior Court¿(1989) 213 Cal.App.3d 1045, 1047.)¿ Ordinarily, the Court will not consider the validity of the proposed amended pleading in ruling on a motion for leave since grounds for a demurrer or motion to strike are premature.¿¿The Court, however, does have discretion to deny leave to amend where a proposed amendment fails to state a valid cause of action as a matter of law and the defect cannot be cured by further amendment.¿ (See¿California Casualty General Ins. Co. v. Superior Court¿(1985) 173 Cal.App.3d 274, 281 (overruled on other grounds by¿Kransco v. American Empire Surplus Lines Ins. Co.¿(2000) 23 Cal.4th 390).) 

Plaintiff’s declaration in support of his motion for leave to amend satisfies the requirements under CRC Rule 3.1324.¿ Plaintiff’s counsel identifies the amendments, their effect, why the amendment is necessary and proper, when the facts giving rise to the new allegations was discovered, and the reason the amendment is being sought now.¿ (Fink Decl. ¶1.)¿   

Plaintiff’s motion also complies with the requirements of CRC Rule 3.1324.  It includes a copy of the proposed amendment; it states what allegations are proposed to be added including where by page, paragraph and line number, and what if any allegations in the previous pleading are proposed to be deleted.    

The liberal policy favoring amendment counsels in favor of granting Plaintiff leave to file his first amended complaint, particularly where as here Defendant does not oppose the amendment.  (Ontkean Decl. at ¶2; Kittredge Sports Co., 213 Cal.App.3d at 1047.)¿       

MOTION FOR LEAVE TO FILE CROSS-COMPLAINT 

Defendant seeks leave to file a cross-complaint.  Defendant mistakenly included her cross-complaint as part of her answer, contrary to § 428.40.  That section states that “[t]he cross-complaint shall be a separate document.”  A cross-complaint is a pleading separate and apart from the answer, is required to be complete and sufficient in itself, and cannot be aided by averments of the answer.  (Luse v. Peters (1933) 219 Cal. 625, 630.)  The Court grants Defendant leave to file her cross-complaint and also to amend her answer to remove the cross-complaint.   

MOTION FOR SUMMARY JUDGMENT    

Defendant moves for summary judgment on the original complaint, on the ground that based on the undisputed evidence, there is no easement over Defendant’s property.  As the Court has granted Plaintiff leave to amend, the first amended complaint moots the motion for summary judgment directed to the original complaint.  (State Compensation Insurance Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1130-31 (an amended complaint supersedes all prior complaints and moots any motion directed to a prior complaint); Hejmadi v. AMFAC, Inc. (1988) 202 Cal.App.3d 525, 536 (“a court granting plaintiff leave to amend a cause of action should not at the same time attempt to summarily adjudicate material issues which underlie that same cause of action”).)  Accordingly, the Court denies the motion for summary judgment as moot.   

MOTION PURSUANT TO §§ 765.010-765.060 

Defendant moves pursuant to Code Civ. Proc. §§ 765.010-765.060 for a finding that Plaintiff filed his lawsuit with the intent to harass because the evidence shows there is no easement.  Section 765.010 prohibits the filing of a lawsuit against another person knowing it is false with the intent to harass the person.  As with the motion for summary judgment, this motion is directed to the original complaint and is also moot.  (Hejmadi, 202 Cal.App.3d at 536.)   

CONCLUSION 

Based on the foregoing, the Court GRANTS Plaintiff’s motion for leave to file a first amended complaint.  Plaintiff must file his first amended complaint within 10 days.  The Court also GRANTS Defendant’s motion to file a cross complaint and DENIES as moot Defendant’s motion for summary judgment and motion pursuant to §§ 765.010-765.060.  Defendant must file his cross complaint and amended answer within 10 days.   

 

IT IS SO ORDERED. 

 

DATED: February 28, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court