Judge: Gary I. Micon, Case: 21CHCV00695, Date: 2025-03-27 Tentative Ruling

Case Number: 21CHCV00695    Hearing Date: March 27, 2025    Dept: F43

Dept. F43

Date: 03-27-25

Case # 21CHCV00695, Restoration Masters, Inc. v. David Alfred Amihere

Trial Date: 09-15-25

MOTION FOR LEAVE TO FILE A FIRST AMENDED CROSS-COMPLAINT

MOVING PARTY: Cross-Complainant/Defendant David Alfred Amihere

RESPONDING PARTY: No response has been filed.

RELIEF REQUESTED

Order granting defendant leave to file a first amended cross-complaint.

RULING: Motion is denied.

SUMMARY OF ACTION

Cross-defendant/plaintiff Restoration Masters, Inc. (Restoration) filed this action against cross-complainant/defendant David Alfred Amihere (Amihere) on September 9, 2021, alleging that Amihere breached a contract by failing to pay for materials and Restoration’s construction services and remediation of Amihere’s property. 

On November 18, 2021, Amihere filed a cross-complaint against Restoration alleging that the fire remediation work Restoration performed at Amihere’s home was faulty, improper, and incomplete.  Amihere claims that smoke and mold that should have been removed is still present in his home and has caused damages and injuries to Amihere.  The cross-complaint alleged causes of action for (1) breach of contract; (2) breach of implied covenant of good faith and fair dealing; (3) negligence; (4) intentional misrepresentation; (5) negligent misrepresentation; (6) breach of fiduciary duty; (7) declaratory relief; (8) violation of Penal Code, § 396; (9) negligent infliction of emotional distress; (10) intentional infliction of emotional distress; and (11) cancellation of mechanic’s lien.

Restoration’s complaint was dismissed on August 2, 2023.

On February 20, 2025, Amihere moved to file a first amended cross complaint (FACC) to add a twelfth cause of action for Slander of Title based on a “false lien” Restoration recorded on the title of Amihere’s property.  No opposition has been filed.

ANALYSIS

“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.”  (Code Civ. Proc., § 473, subd. (a)(1); see also In re Marriage of Liss (1992) 10 Cal.App.4th 1426, 1429.)  “Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.”  (Code Civ. Proc., § 576.)

Judicial policy favors resolution of all disputed matters between the parties, and therefore, 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.)  “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.”  (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530, citations omitted.)

Motions for leave to amend must also meet certain procedural requirements.  For instance, California Rules of Court, rule 3.1324(a) requires that the motion “(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.”  Additionally, Rule 3.1324(b) requires that the declaration in support of a motion for leave to file an amended complaint must state: “(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.”

            Amihere’s “new” cause of action

As set forth in the Declaration of Robert M. Ruhle, Amihere’s counsel, Amihere discovered that Restoration recorded a “false” lien against his property which clouds the title and warrants adding a cause of action for Slander of Title.  (Declaration of Robert M. Ruhle, ¶ 4.)  Amihere’s attempts to resolve this issue have failed, making this amendment necessary.  Amihere claims he discovered additional information and facts since filing his original cross-complaint on November 18, 2021.

However, the exhibits attached to Amihere’s original cross-complaint (Exhs. 2, 3.) and proposed FACC (Exhs. 2, 3.) directly contradict Amihere’s assertion that he discovered additional information after November 18, 2021.  Exhibit #2 is the alleged “false lien” recorded on July 26, 2021, and Exhibit #3 is a letter Amihere’s counsel sent four days later demanding Restoration release the lien.  Amihere bases his Cancellation of Mechanic’s Lien and Slander of Title claims on these exhibits.  Therefore, it appears that Amihere does not base his proposed Slander of Title claim on “new” facts he learned after filing his original cross-complaint.

Because Amihere does not present any “new” facts, explain why he did not include the Slander of Title claim in the original cross-complaint, or explain why he waited over three years to file this motion, the court denies Amihere’s motion for leave to file an amended cross-complaint.

CONCLUSION

Cross-complainant/Defendant David Alfred Amihere’s motion for leave to file a first amended cross-complaint is denied.

Cross-complainant/Defendant David Alfred Amihere to give notice.