Judge Joseph Lipner, Case Number: 22STCV21829, Date: 2023-09-07 Tentative Ruling

Judge: Joseph Lipner, Case: 22STCV21829, Date: 2023-09-07 Tentative Ruling

Case Number: 22STCV21829 Hearing Date: September 7, 2023 Dept: 72

9/7/23

Case Number: 22STCV21829

Case Name: Laura F. Cohen v. Michelle Griffin, et al.

On July 5, 2023, Defendants/Cross-Complainants Michelle Griffin and DACG LLC (collectively, “Cross-Complainants”) filed a motion for leave to file second amended cross-complaint. On August 23, 2023, Plaintiff/Cross-Defendant Laura F. Cohen (“Plaintiff” or “Cross-Defendant”) opposed the motion. On August 30, 2023, Cross-Complainants replied.

The Court GRANTS the motion. Cross-Complainants must file and serve the proposed SACC within five days of the date of this order. To the extent that Plaintiff wishes the Court to extend the trial date, the Court will do so.

Background of the Case

This action arises out of a boundary dispute. Plaintiff filed this action on July 7, 2022, alleging causes of action for quiet title, trespass, private nuisance, negligence/negligence per se, and declaratory relief. On August 23, 2022, Cross-Complainant Michelle Griffin filed a cross-complaint. Cross-Complainants filed the operative First Amended Cross-Complaint on November 16, 2022, alleging causes of action for nuisance, trespass, equitable easement and/or easement by necessity, and declaratory relief. On April 7, 2023, Plaintiff filed a Doe amendment to the complaint, naming DACG LLC as a defendant.

Legal Standard

“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).)

“This discretion 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.) 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. (Cal. Rules of Court, rule 3.1324, subd. (a).)

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. (Cal. Rules of Court, rule 3.1324, subd. (b).)

Analysis

The Court finds Cross-Complainants’ motion to be well-taken. Cross-Complainants have complied with Rule 3.1324 of the California Rules of Court by providing copies of the proposed Second Amended Cross-Complaint (“SACC”) with the proposed amendments and deletions identified thereon. (Guadiana Decl., Ex. B.) Cross-Complainants have also provided the required declaration setting forth the effect of the proposed amendments, why they are necessary and proper, when the facts supporting the amendments were discovered, and the reasons why the request for amendment was not made earlier. (Guadiana Decl., ¶¶ 2-16.)

The Court finds Cross-Defendant Cohen’s arguments in opposition to permitting amendment to be unpersuasive. Cross-Complainants have made clear that the decision to amend the First Amended Cross-Complaint (“FACC”) came about due to Cross-Complainants retaining new counsel just a few months ago in April who soon identified issues with the FACC. (Guadiana Decl., ¶¶ 2-5.) The proposed SACC is based on the same set of facts as the FACC and is against the same parties as before; the fact that it adds causes of action does not necessarily affect the outcome here. (See Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.)

The Court also finds no evidence that Cross-Complainants were dilatory in seeking this amendment. Cross-Complainants only recently retained new counsel who filed the instant motion within a couple months of having been retained. Cross-Complainants attempted to avoid this motion by having the parties stipulate to Cross-Complainants filing the SACC, but Cross-Defendant refused, thus necessitating this motion. (See Guadiana Decl., ¶ 16.)

The Court further finds no evidence that Cross-Defendant will be prejudiced by permitting this amendment. Trial is still approximately five months away, and if needed, the Court can continue the trial date, especially considering that this action was filed only about one year ago. It is also unclear how Cross-Defendant came up with a 78-day calculation regarding the discovery cutoff.

The Court finds Cross-Defendant’s contentions of sham pleading to be without merit. Cross-Defendant has not cited any particular allegations from the proposed SACC that conflict with allegations from the prior iterations of the FACC or original Cross-Complaint that would support an inference of a sham pleading. (Am. Advert. & Sales Co. v. Mid-W. Transp. (1984) 152 Cal.App.3d 875, 879.)

Finally, Cross-Defendant has not provided any evidence to establish prejudice. The Court finds Cross-Defendant’s request for Cross-Complainants to pay for Cross-Defendant’s costs incurred in preparing for trial to be unfounded. The Court agrees with Cross-Complainants that the reason the defendant in Fuller v. Vista Del Arroyo Hotel (1941) 42 Cal.App.2d 400 was ordered to pay the plaintiff’s trial preparation costs was because the defendant asked to amend his answer on the first day of trial. (Id., at p. 404.) The present action is entirely different here since trial is not for approximately five months.

Accordingly, the Court GRANTS the motion for leave to file second amended cross-complaint. Cross-Complainants must file and serve the proposed SACC within five days of the date of this order.