Judge: Gregory Keosian, Case: BC678400, Date: 2024-04-11 Tentative Ruling

Case Number: BC678400    Hearing Date: April 11, 2024    Dept: 61

I.                   MOTION FOR LEAVE TO FILE AMENDED CROSS-COMPLAINT

Code Civ. Proc. section 473 subd. (a)(1) states that:

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.

“The trial court has discretion to permit or deny the amendment of the complaint, but instances justifying the court's denial of leave to amend are rare.” (Armenta ex rel. City of Burbank v. Mueller Co. (2006) 142 Cal.App.4th 636, 642.)

“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 [Citations], this policy should be applied only ‘[w]here no prejudice is shown to the adverse party . . .’ [Citation.] A different result is indicated ‘[w]here inexcusable delay and probable prejudice to the opposing party’ is shown. [Citation.]” (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487.)

Pursuant to California Rule 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.”

Such a motion must include a supporting declaration stating, “(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.” (CRC Rule 3.1324, subd. (b).)

Defendants and Cross-Complainants Faryan and Leila Afifi (The Afifis) seek leave to file a second amended cross-complaint alleging a new claim for equitable easement related to their access to a two by ten foot strip of land that they use for necessary access to their pool equipment, and which they claim would require severe construction and remodeling work on their home if an easement were not granted. The Afifis claim to have discovered the issue after conducting a survey in the course of settlement discussions with Plaintiffs and Cross-Defendants last year and earlier this year, in which revealed that USCI’s claimed property line along the steep slope of the property, where no fence previously existed, would cut off the narrow strip necessary to access the Afifi pool and associated equipment. (Faryan Decl. ¶ 4.)

The motion has been unreasonably delayed. This case began as a property line dispute back in October 2017. Discovery has been closed for more than a year. Trial is set for July 2024. Summary adjudication was granted on the Afifis’ adverse possession claim on the same property in September 2019, more than four years ago. This court sustained demurrers to the Afifis’ claims for prescriptive easement on the same property in March and June 2018. Their claim that they could not discover the full ramifications of the very property line dispute they had been extensively litigating for years until they belatedly conducted a survey in mid-2023 is not reasonable. To permit the amendment of the cross-complaint at this juncture would require yet another delay of an already-delayed trial, and the reopening of discovery to inquire into the relative hardships of abiding by the property line. (Ranch at the Falls LLC v. O'Neal (2019) 38 Cal.App.5th 155, 183.)

The motion is DENIED.