Judge Katherine Chilton, Case 19STLC06644 2023-03-08 Tentative Ruling

Judge: Katherine Chilton, Case: 19STLC06644, Date: 2023-03-08 Tentative Ruling

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Case Number: 19STLC06644 Hearing Date: March 8, 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 CONTINUED to APRIL 10, 2023 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Plaintiff must file and serve supplemental papers addressing the errors discussed herein. Failure to do so may result in the Motion being placed off calendar or denied.

Additionally, the Court, on its own motion, continues the trial date to JUNE 20, 2023 AT 8:30 A.M. IN DEPARTMENT 25.

SERVICE:

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

[ ] Correct Address (CCP §§ 1013, 1013a) NOT OK[1]

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

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

REPLY: None filed as of March 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. 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.)

As noted above, 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.) Here, the Court does not find any delays in seeking amendment or any prejudice to Defendants. The Court also finds that Plaintiff has complied with the procedural requirements of the California Rules of Court, Rule 3.1324. The Court notes that Defendant Kristy may present pertinent information, facts, and arguments in her answer to the amended complaint.

However, the Court continues the hearing on the Motion given that self-represented Defendant Kristy has been improperly served with the moving papers by electronic transmission. Code of Civil Procedure § 1010.6 authorizes service of documents by electronic service (service by e-mail) in certain enumerated circumstances. Code of Civil Procedure § 1010.6(a)(2)(A)(ii) provides, “[f]or cases filed on or after January 1, 2019, if a document may be served by mail, express mail, overnight delivery, or facsimile transmission, electronic service of the document is authorized” only: (1) “if a party . . . has expressly consented to receive electronic service in that specific action”, (2) “if . . . the court has ordered electronic service on a represented party or other represented person under subdivision (c) or (d)”, or (3) “if . . . the document is served electronically pursuant to the procedures specified in subdivision (e)”, that is, electronic service is made upon a party who is represented by counsel. (Code Civ. Proc., §§ 1010.6(a)(2)(A)(ii), (c), (d), (e).) There is no indication that Defendant Kristy is represented by counsel or has consented to electronic service.

For this reason, the Court CONTINUES the hearing on the Motion and orders Plaintiff to properly serve Defendant Kristy with the moving papers.

IV. Conclusion & Order

For the foregoing reasons,

Additionally, the Court, on its own motion, continues the trial date to JUNE 20, 2023 at 8:30 a.m. in Department 25.

The Court further notes that if Plaintiff is allowed to amend his complaint, the case will be reclassified to unlimited jurisdiction due to the remedies Plaintiff is seeking.

Moving party is ordered to give notice.

[1] Self-represented Defendant has been improperly served via electronic transmission.