Judge: H. Jay Ford, III, Case: 20SMCV01418, Date: 2023-05-02 Tentative Ruling

Case Number: 20SMCV01418    Hearing Date: May 2, 2023    Dept: O

Case Name:  Moradi, et al. v. Taheri

SUBJECT:                 MOTION FOR LEAVE TO FILE A FIRST AMENDED Cross-COMPLAINT

MOVING PARTY:   Defendant/Cross-Complainant Sherry Taheri

RESP. PARTY:         Plaintiffs Robert Moradi and Gail Moradi

TENTATIVE RULING

            Defendant/Cross-Complainant Sherry Taheri’s Motion for Leave to File an Amended Cross-Complaint is DENIED.

I.  Taheri is seeking leave to assert a permissive cross-claim for slander of title

“Except as otherwise provided by statute, if a party against whom a complaint has been filed and served fails to allege in a cross-complaint any related cause of action which (at the time of serving his answer to the complaint) he has against the plaintiff, such party may not thereafter in any other action assert against the plaintiff the related cause of action not pleaded.” CCP §426.30. 

Taheri moves to file an amended cross-complaint adding a cause of action for slander of title.  Taheri’s slander of title claim is based on the lis pendens filed by the Moradis on 8-25-21 in this action and recorded on 9-20-21.  Taheri’s slander of title claim did not arise until after she filed an answer to the complaint on 2-5-21 and she did not “have” it when she answered. 

In addition, a “related cause of action” under CCP §426.30 is a cause of action “which arises out of the same transaction, occurrence or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint.”  CCP §426.10(c).  The Moradis’ causes of action arise out of the parties’ fence and boundary dispute, not this litigation.  The slander of title cause of action arises from this litigation, not the fence and boundary dispute.  The slander of title claim is therefore arguably not a “related cause of action.”

Taheri slander of title claim is therefore not a compulsory cross-claim under CCP §426.30.  The Court is therefore not required to grant leave so long as Taheri is acting in good faith.  CCP §426.50 (court “shall” grant leave to file a compulsory cross-complaint brought in good faith).  Taheri is also not prevented from filing a separate action for slander of title against the Moradis.

Taheri’s request for leave to file an amended cross-complaint is therefore a request to file a permissive cross-claim under CCP §428.50.  If the proposed cross-complaint is permissive, leave of court may be granted “in the interests of justice” at any time during the course of the action.  CCP §428.50(a) and (c). 

II.  Taheri fails to comply with CRC Rule 3.1324(b), because she fails to submit a declaration attesting to when the facts supporting the slander of title claim were discovered and why the amendment could not be filed earlier

Taheri alleges she listed the property for sale on 5-21-21.  Taheri alleges she sought to refinance her property on November 2021.  Taheri alleges she was unable to either sell the property or refinance it due to the lis pendens. 

Taheri was required under CRC Rule 3.1324(b) to submit a declaration specifying when the facts giving rise to the amended allegations were discovered and the reasons why the request was not made earlier.  Taheri fails to provide any explanation for her failure to seek leave to allege a claim for slander of title earlier.  Based on Taheri’s allegations, she could have filed the slander of title claim as early as November or December 2021, after the lis pendens was filed and she was unable to refinance or sell. 

III.  Given the proximity of the trial date, the length of time this action has been pending, the expiration of all cut-offs and the unrelatedness of the permissive cross-complaint, the interests of justice would not be served by allowing Taheri leave to file the amended cross-complaint

Taheri’s amendment would also restart the entire litigation.  The Moradis would be entitled to file motions attacking the pleadings (e.g. motion to strike, demurrer and MJP), an answer, and dispositive motions (e.g. summary judgment).  Discovery would have to be reopened.  The mere fact the Moradis asked Taheri some deposition questions relating to the potential slander of title claim does not satisfy the Moradis’ right to conduct full discovery on that claim.  The trial date, which is only 13 days away, would have to be continued.  The initial trial date of 6-27-22 was already continued once.  The action has been pending for nearly two and a half years.  All of these additional delays would be the result of a permissive cross-claim that is unrelated to the underlying events that gave rise to the Moradis’ complaint and that could be filed as a separate action.

If leave to file the amended complaint were granted, the Moradis would be prejudiced.  Given Taheri’s failure to explain her delay in seeking leave to amend and the prejudice that would result if leave were granted, the motion for leave to file a First Amended Cross-Complaint is DENIED. 

 Case Name:  Moradi, et al. v. Taheri

SUBJECT:                 MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT

MOVING PARTY:   Plaintiffs Robert Moradi and Gail Moradi

RESP. PARTY:         Defendant/Cross-Complainant Sherry Taheri

TENTATIVE RULING

Plaintiffs’ Motion for Leave to File an Amended Complaint is DENIED.  Plaintiffs unduly delayed in seeking leave to substantially amend the complaint and fail to provide any explanation for the delay.  Defendant will suffer undue prejudice if leave to amend were granted, because the trial date would have to be continued and discovery reopened.  Finally, the proposed amendments themselves are defective on their face and unsupported by the complaint allegations. 

“Courts must apply a policy of liberality in permitting amendments at any stage of the proceeding, including during trial, when no prejudice to the opposing party is shown.” P&D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1345. Prejudice exists, for example, where the plaintiff unduly delayed in seeking leave to amend, and the amendment will require a trial continuance and a reopening of discovery on the eve of trial.  Id. (leave to amend properly denied where plaintiff offered no explanation for one-year delay in seeking leave to amend, amendment was requested after trial readiness conference, amendment would require additional discovery and amendment would likely trigger a demurrer or other pretrial motions); Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 488 (“Where the trial date is set, the jury is about to be impaneled, counsel, the parties, the trial court, and the witnesses have blocked the time, and the only way to avoid prejudice to the opposing party is to continue the trial date to allow further discovery, refusal of leave to amend cannot be an abuse of discretion”).

“Section 473 permits the trial court in its discretion to allow amendments to pleadings in the furtherance of justice. Ordinarily, courts should exercise liberality in permitting amendments at any stage of the proceeding.  In particular, liberality should be displayed in allowing amendments to answers, for a defendant denied leave to amend is permanently deprived of a defense.”  Hulsey v. Koehler (1990) 218 Cal.App.3d 1150, 1159.  “A trial court has discretion to allow amendment of any pleading at any stage of the proceedings and it has been said that liberality should be particularly displayed in allowing amendment of answers so that a defendant may assert all defenses available to him.”  Ramos v. City of Santa Clara (1973) 35 Cal.App.3d 93, 95–96 (trial court properly allowed granted defense summary judgment based on defenses of release and accord and satisfaction despite not having been pled in the answer where plaintiff did not object to the motion on that ground and no prejudice was demonstrated as a result of failure to plead the defense in the answer).   

I.  Plaintiffs’ unduly delayed and provide no explanation for the delay; Defendant will suffer prejudice if leave granted

Plaintiffs seek leave to file an FAC alleging four new causes of action and additional forms of relief under Civil Code §3346 and CCP §798.  Plaintiffs’ proposed amendment is due to the written acknowledge of an oral agreement between Plaintiffs and the former owner of Defendant’s property, Mary O’Neal, which took place in 2002.  See Motion, Dec. of A. Carpinelli, ¶3.  O’Neal executed a declaration attesting to this oral agreement in March 2022.  Id., Ex. 1, FAC, Ex. A.  Plaintiffs proposed these additional causes of action as early as March 14, 2022. 

Plaintiffs proposed these additional causes of action as early as March 14, 2022 and had O’Neal’s declaration prior to that date.  Plaintiffs should have known of this oral agreement from the outset of the action because they were parties to it.

Despite these facts, Plaintiffs did not move for leave to add the proposed causes of action until a year later.  Plaintiffs offer no explanation for the year long delay.  Plaintiffs offer no explanation for moving for leave to amend less than a month before expiration of the discovery cutoff.  Discovery is now closed.  The trial date is less than a month away.  The action has been pending for over two years, since October 2, 2020 and the trial date has already been continued once. 

The proposed amendments would require reopening of discovery and continuance of the trial date.  Defendant would be entitled to attack the pleadings by demurrer and motion for judgment on the pleadings prior to answering the FAC.  Defendant would also be entitled to seek summary judgment. 

II.  Plaintiffs’ proposed amendments are patently defective and border on frivolous, bad faith amendments.

Ordinarily, the validity of an amendment is not grounds for denial of leave to amend and its legal sufficiency should be tested in other appropriate proceedings.  See Atkinson v. Elk Corp. (2003) 109 Cal.App.4^th 739, 760.  “Leave to amend should be denied only where the facts are not in dispute, and the nature of the plaintiff's claim is clear, but under substantive law, no liability exists and no amendment would change the result.”  Edwards v. Superior Court (2001) 93 Cal.App.4th 172, 180  (reversing denial of leave to amend based on trial court’s erroneous application of CCP §364 as an affirmative defense).  A court’s discretion to deny an amendment based on its “substantive vitality” is most appropriately exercised in “cases in which the insufficiency of the proposed amendment is established by controlling precedent and where the insufficiency could not be cured by further appropriate amendment.”  California Casualty Gen. Ins. Co. v. Supr. Ct. (1985) 173 Cal.App.3d 274, 280-281 (disapproved of on other grounds).  Where the legal sufficiency of a proposed amendment is “a novel question almost certain to be tested in an appellate court, the preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings.”  Id. at 281.   

The Court questions whether the proposed amendments were brought in good faith.  For example, on its face, the proposed FAC does not state a claim for prescriptive easement, because Plaintiffs admit they placed the fence on O’Neal’s property in 2002 with O’Neal’s permission.  See Motion, Ex. 1, Proposed FAC, ¶¶11-12.  An essential element of a prescriptive easement is 5 years of adverse use that his hostile to the true owner.  See 12 Witkin, Summary (11^th ed. 2017), §415.  Prescription cannot be gained if the use is permissive.  Id. at §418. 

Likewise, the proposed FAC fails to state a claim for quiet title based on agreed boundary doctrine.  The elements of a cause of action for title by agreed boundary are “uncertainty as to the true boundary line, an agreement between the coterminous owners fixing the line, and acceptance and acquiescence in the line so fixed for a period equal to the statute of limitations or under such circumstances that substantial loss would be caused by a change of its position.”  Ernie v. Trinity Lutheran Church (1959) 51 Cal.2d 702, 707. 

“If there is no uncertainty, the oral agreement is invalid; in such a case the agreement would not be the settlement of a boundary but a transfer of land, invalid under the statute of frauds. This is true, e.g., where the parties are mistaken as to the true boundary and merely acquiesce in the wrong boundary.”  12 Witkin, Summary (11^th ed. 2017), Real Prop §294. 

“While the agreed boundary doctrine has existed in California for more than a hundred years, and many cases addressing and applying it remain good law, in 1994 the California Supreme Court significantly limited the application of the agreed boundary doctrine, holding that the doctrine does not apply: (1) where available legal records provide a reasonable basis for fixing the boundary, and (2) the proponent fails to establish that uncertainty as to the location of the true boundary led to an agreement between the landowners to create a boundary at an agreed-upon location.  The court declined to establish a bright line rule limiting the agreed boundary doctrine, to instances in which existing legal records are inadequate to settle a boundary dispute,  but it affirmed that that agreed boundary doctrine was a ‘narrow theory’ that ‘may not be relied upon to supersede legal descriptions set forth in deeds,’ unless the required elements of the agreed boundary doctrine are proved.  Specifically, if existing legal records provide a basis for fixing the boundary, then the court will not infer, without additional evidence, that the prior owners were uncertain as to the location of the true boundary or that they agreed to fix their common boundary along a fence or other insubstantial or transitory structure.”  6 Miller and Starr, Cal. Real Est. (4th ed. 2015), §17:39 (Bryant v. Blevins (1994) 9 Cal. 4th 47, 54–55). 

There are no allegations that the Moradis agreed to fix the boundary line where the Moradis placed the fence.  Plaintiffs only allege and O’Neal only testifies that the parties were unsure of where the actual property line was and O’Neal agreed to the location of the fence.  See Motion, Ex. 1, Proposed FAC, ¶¶11-12, Ex. A.  Plaintiffs were required to allege that there was actual uncertainty and that the parties agreed to resolve the uncertainty by designating the fence line as the property line. 

Plaintiffs’ request for relief pursuant to Civil Code §3346 and CCP §733 for Defendant’s removal of the fence borders on bad faith.  Civil Code §3346 allows for damages for “wrongful injuries to timber, trees, or underwood upon the land of another, or removal thereof.”  CCP §733 creates a right of action against any person who “cust down or caries off any wood or underwood, tree, or timber, or girdles or otherwise injures any tree or timber on the land of another person.”  Neither of these sections would apply to removal of a man-made fence.  Plaintiffs’ proposed FAC also admits there has been no cutting of any trees, only the possibility of cutting or removal of trees. 

III.  Plaintiffs’ motion for leave to amend is denied. 

Plaintiffs’ Motion for Leave to Amend is DENIED.  Plaintiffs inexcusably delayed in seeking leave to amend and Defendant will suffer prejudice if the amendment is allowed.  “[E]ven if a good amendment is proposed in a proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial.” See P&D Consultants (2010) 190 Cal.App.4th 1332, 1345 (plaintiff’s motion for leave was based on new case decided one year before motion for leave was brought; trial court properly denied leave to amend where no explanation was provided for the delay); Huff v. Wilkins (2006) 138 Cal.App.4th 732, 746 (trial court properly denied leave to amend where plaintiff moved for leave three days before hearing on defense summary judgment, plaintiff provided no new facts to support amendment alleging reckless conduct and plaintiff failed to proffer any explanation for his delay in seeking leave).