Judge: Katherine Chilton, Case: 19STLC006644, Date: 2023-04-10 Tentative Ruling

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Case Number: 19STLC006644     Hearing Date: April 10, 2023    Dept: 25

PROCEEDINGS:      MOTION FOR LEAVE TO FILE AMENDED COMPLAINT

MOVING PARTY:   Plaintiff Armando Poeta

RESP. PARTY:         Defendant Andrea J Kristy

MOTION FOR LEAVE TO FILE AMENDED COMPLAINT

(CCP §§ 473(a), 576; CRC 3.1324)

TENTATIVE RULING:

Plaintiff Armando Poeta’s Motion for Leave to File First Amended Complaint is GRANTED.  Plaintiff is ordered to file the First Amended Complaint within 10 days’ notice of this order.

SERVICE: 

[   ] Proof of Service Timely Filed (CRC, rule 3.1300)                 OK

[   ] Correct Address (CCP §§ 1013, 1013a)                                                 OK

[   ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     OK

OPPOSITION:          Filed on December 12, 2022.                           [   ] Late                      [   ] None

REPLY:                     None filed as of April 5, 2023.               [   ] Late                      [X] None

ANALYSIS:

I.                Background

On July 17, 2019, Plaintiff Armando Poeta (“Plaintiff”), in propria persona, filed an action against Defendants Andrea J. Kristy dba South Bay Handyman Services (“South Bay”), Andrea J. Kristy, an individual (“Kristy”), and John W. Yeater (“Yeater”), (collectively “Defendants”) for 1) breach of contract, 2) fraud and intentional misrepresentation, 3) violation of State Contractors’ License Laws, and 4) negligent infliction of emotional distress.  The action arose out of an alleged contract between Plaintiff, homeowner, and Defendant South Bay Handyman Services, owned by Defendant Kristy, for electrical work to be completed by Defendant Yeater at Plaintiff’s home.  (See Compl.)

On May 3, 2021, at the request of Plaintiff, the Court entered default against Defendants South Bay, Kristy, and Yeater.  (5-3-21 Request.)  Subsequently, on May 12, 2021, Default Judgment was entered against all Defendants for $24,080.32.  (5-12-21 Judgment by Default.)

On April 25, 2022, the Court granted Defendant Kristy’s Motion to Set Aside/Vacate Default and/or Default Judgment, filed on December 6, 2021.  (4-25-22 Minute Order.)  Default and default judgment entered against Defendant Kristy were vacated and the Answer was deemed filed by the Court.  (Ibid.)  On May 9, 2022, Defendant Kristy filed an Amended Answer.

On September 15, 2022, the Court denied Defendant Yeater’s Motion to Vacate Default Judgment, filed on July 19, 2022.  (9-15-22 Minute Order.)

On November 30, 2022, Plaintiff filed the instant Motion for Leave to File First Amended Complaint (“Motion”).  Defendant Kristy filed an Opposition (improperly labeled as “Objection”) to the Motion on December 12, 2022.

On March 8, 2023, the Court continued the hearing on the Motion and ordered Plaintiff to properly serve Defendant Kristy.  (3-8-23 Minute Order.)  The Court also continued the trial date to September 18, 2023.  (Ibid.)

            On March 13, 2023, Plaintiff filed supplemental papers.

            No reply has been filed.

II.              Legal Standard

Leave to amend is permitted under Code of Civil Procedure § 473(a) and § 576.  The policy favoring amendment and resolving all matters in the same dispute is “so strong that it is a rare case in which denial of leave to amend can be justified.  [Citation.]”  (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422.)  Notwithstanding the “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 ‘where no prejudice is shown to the adverse party . . . .’ [citation].  A different result is indicated ‘where inexcusable delay and probable prejudice to the opposing party’ is shown. [Citation].”  (Magpali v. Farmers Group (1996) 48 Cal.App.4th 471, 487.)

A motion for leave to amend a pleading must also comply with the procedural requirements of California Rules of Court, Rule 3.1324, which requires a supporting declaration to set forth explicitly what allegations are to be added and where, and explicitly stating what new evidence was discovered warranting the amendment and why the amendment was not made earlier. The motion must also include (1) a copy of the proposed and numbered amendment, (2) specifications by reference to pages and lines the allegations that would be deleted and added, and (3) a declaration specifying the effect, necessity and propriety of the amendments, date of discovery and reasons for delay.  (See Cal. Rules of Court, Rule 3.1324(a), (b).)

III.            Discussion

Plaintiff seeks to amend the original Complaint, filed on July 17, 2019, in order to “delete prior inapplicable causes of action as well as add new meritorious causes of action, and to rewrite with better clarity the factual allegations and other remaining claims” after having retained counsel to represent him in the instant matter.  (Mot. p. 3.)  Plaintiff’s counsel sought a stipulation from Defendant Kristy regarding the amendment; however, Defendant refused.  (Ibid. at pp. 3-4; Zargarpour Decl. ¶ 9, Exs. A-C.)  Plaintiff argues that “the standard for amending pleadings to add additional causes of action is a liberal one” and “defendants will suffer no prejudice by such amendment.”  (Mot. p. 3.)

The action arose out of an alleged agreement between Plaintiff, homeowner, and Defendant South Bay Handyman Services, owned by Defendant Kristy, for electrical work to be completed by Defendant Yeater at Plaintiff’s home.  (Ibid.; see also Compl.)  Plaintiff alleges that around December 2017, he learned that the state contractor’s license and insurance certificate presented by Defendant Kristy were “false and counterfeit” and affiliated with a different business.  (Mot. p. 4.)  Thus, Defendants Kristy, South Bay, and Yeater were “unlicensed and operating unlawfully” and “the work performed was inadequately performed and defective.”  (Ibid.)

Plaintiff has attached a copy of the proposed First Amended Complaint (“FAC”) as Exhibit 1 to the Motion.  Plaintiff argues that “[p]ermitting Plaintiff to file the FAC is in the interests of judicial economy and in furtherance of justice.”  (Ibid. at p. 5; Zargarpour Decl. ¶¶ 16-17.)  There have been no delays in seeking to amend the Complaint because Plaintiff retained counsel in August 2022 and since then, counsel has been investigating the case and the factual allegations.  (Zargarpour Decl. ¶¶ 2, 5, 11.)  Defendant Kristy will not suffer prejudice as she has “been apprised of the facts of this case since late 2016” and Plaintiff’s counsel has attempted to communicate with her and offer her additional discovery requests.  (Mot. p. 6; Zargarpour Decl. ¶¶ 9, 10, 12-14, Exs. A-C.)  On the contrary, Plaintiff would suffer substantial prejudice because he would not be able to pursue all the claims arising out of the instant case.  (Zargarpour Decl. ¶¶ 7-8, 16-17.)  Finally, the proposed FAC is “based on the same general set of facts as the original complaint.”  (Mot. p. 7.)  Plaintiff merely wants to add additional details in some portions of the Complaint, remove certain specific allegations for more general ones in other parts of the Complaint, and clarify allegations against Doe defendants.  (Zargarpour Decl. ¶¶ 7-8, 12, 15.)  Finally, Plaintiff argues that the amendment is “necessary and proper to facilitate the interests of justice and allow resolution of all of Plaintiff’s disputed issues in connection with the wrongdoing and injuries Plaintiff suffered in the defendants’ unlawful scheme.”  (Mot. p. 7; Ibid. at ¶¶ 16-17.)

Plaintiff’s Motion also sets forth the allegations and causes of action to be added, deleted, and clarified through the FAC.  (Mot. pp. 8-11; Zargarpour Decl. ¶¶ 7-8, 15.)

            Defendant Kristy opposes Plaintiff’s Motion.  Defendant argues that the Complaint “proposes removal of pertinent information and facts that are relied upon by Defendant to support the defensive argument,” which will prejudice Defendant.  (Oppos. pp. 1-2.)  The proposed changes “will only serve to benefit the Plaintiff, with no effect on justice or clarification.”  (Ibid. at p. 2.)

On March 8, 2023, the Court explained that the policy favoring amendment and resolving all matters in the same dispute is “so strong that it is a rare case in which denial of leave to amend can be justified.  [Citation.]”  (3-8-23 Minute Order; Howard v. County of San Diego (2010) 184 Cal.App.4th 1422.)  The Court did not find any delays in seeking amendment or any prejudice to Defendants.  (3-8-23 Minute Order.)  Moreover, the Court found that Plaintiff complied with the procedural requirements of the California Rules of Court, Rule 3.1324.  (Ibid.)  The Court added that Defendant Kristy may present pertinent information, facts, and arguments in her answer to the amended complaint.  (Ibid.)

However, given that self-represented Defendant Kristy had been served with the moving papers by electronic transmission, the Court continued the hearing on the Motion and ordered Plaintiff to properly served Defendant Kristy.  (Ibid.)

On March 13, 2023, Plaintiff filed a supplemental declaration of Plaintiff’s Counsel Nader Zargarpour, Esq. in support of the Motion.  Counsel states that Defendant Kristy has consented to email communication and submits email communications in which Defendant Kristy expressly accepts to be served by email.  (Supp. Zargarpour Decl. ¶¶ 4, 6-7, Exs. A-B.)  Counsel adds that Defendant has not withdrawn her consent.  (Ibid. at ¶ 5.)  Plaintiff has also filed proof that Defendant has been served with the moving papers by mail and with the Notice of Continuance by email.  (3-13-23 Notice of Continuance; 3-13-23 Proof of Service.)  The Court finds that Defendant has been properly served.

The Court also finds that Plaintiff has satisfied all requirements for the instant Motion.  The Motion for Leave to File First Amended Complaint is GRANTED.

IV.           Conclusion & Order

For the foregoing reasons,

Plaintiff Armando Poeta’s Motion for Leave to File First Amended Complaint is GRANTED.  Plaintiff is ordered to file the First Amended Complaint within 10 days’ notice of this order.

Moving party is ordered to give notice.