Judge: Katherine Chilton, Case: 22NWLC08651, Date: 2023-05-08 Tentative Ruling

Case Number: 22NWLC08651     Hearing Date: May 8, 2023    Dept: 25

PROCEEDINGS:      MOTION FOR LEAVE TO FILE PLAINTIFF’S FIRST AMENDED COMPLAINT

MOVING PARTY:   Plaintiff Veritext, LLC

RESP. PARTY:         Defendant Loyst P. Fletcher

MOTION FOR LEAVE TO AMEND

(CCP § 473(a))

TENTATIVE RULING:

SERVICE: 

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

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

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

OPPOSITION:          Filed on April 25, 2023                        [   ] Late                      [  ] None

REPLY:                     None filed as of May 2, 2023                [   ] Late                      [X] None

ANALYSIS:

I.                Background

On April 18, 2022, Plaintiff Veritext LLC (“Plaintiff”) filed an action against Defendant Loyst P. Fletcher d/b/a Law Offices of Loyst P. Fletcher (“Fletcher”) (“Defendant”) for (1) breach of contract, (2) common counts, and (3) common counts. The Complaint alleges that the date of breach occurred on or around April 24, 2018. (Compl. at pp. 2-5.) On June 1, 2022, Defendant filed an Answer.

On October 19, 2022, the Court determined that the case is not a “collection hub” matter and ordered the case transferred to Department One for reassignment. (10-19-22 Minute Order.) On November 1, 2022, the case was assigned to Judge Katherine Chilton in Department 25 at the Spring Street Courthouse. (11-1-22 Minute Order.)

On November 7, 2022, Defendant filed its Motion for Summary Judgment, or in the Alternative, Summary Adjudication on the ground that Plaintiff’s claims are barred by the statute of limitations because Plaintiff admitted the alleged breach occurred on April 24, 2018 and the underlying Complaint was not filed until April 18, 2022.

On January 31, 2023, Plaintiff filed a Notice of Errata, indicating an error as to the date of breach listed in the Complaint and the intention of correcting this error through a motion for leave to amend. On the same day, Plaintiff filed an Opposition to Defendant’s Motion for Summary Judgment, indicating the same.

On February 1, 2023, Defendant filed a Notice of Non-Opposition to the Motion for Summary Judgment. Defendant filed a Reply to Plaintiff’s Opposition on February 8, 2023.

On February 14, 2023, the Court continued the hearing on the Motion for Summary Judgment as it had not received the reply in a timely fashion. (2-14-23 Minute Order.)

On the same day, Plaintiff filed a Motion for Leave to File First Amended Complaint, along with a copy of the First Amended Complaint, with a hearing reserved for May 8, 2023.

On February 22, 2023, the Court continued the hearing on Defendant’s motion for summary judgment to allow for Plaintiff’s Motion for Leave to File First Amended Complaint (the “Motion”) to be heard. (2-22-23 Minute Order.)

            On April 25, 2023, Defendant filed his opposition to the Motion. No reply papers have been filed.  

II.              Legal Standard

            Leave to amend is permitted under Code of Civil Procedure §§ 473, subdivision (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. . ..” “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 ‘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, subds. (a), (b).)

III.            Discussion

As a preliminary matter, Defendant argues the motion should be denied because it was not properly served. (Opp., 9.) However, Plaintiff’s proof of service indicates that service was properly made by email. (See Proof of Service.) Regardless, Defendant was able to timely file his opposition to Motion, and as a result, the Court shall make a determination on the merits of the Motion.

A.    Merits

Here, Plaintiff seeks leave of court to file an amended Complaint in order to correct the following: (1) change the alleged date of breach of the oral agreement from April 24, 2018 to June 8, 2021; (2) replaced the initially pleaded date of interest accrual from April 24, 2018 to June 8, 2021; (3) withdraw the third cause of action; and (4) amend the damages claimed in the second cause of action from $13,55.25 to $16,737.40. (Mot., pp. 3-4.) Plaintiff further contends that the Motion is timely made and would not cause prejudice to Defendant. (Mot., pp. 5-6.) Additionally, Plaintiff argues that leave to amend should be granted on the basis of mistake, inadvertence or excusable neglect. (Mot., pp. 6-7.)

In opposition, Defendant argues that the Motion was not made in a reasonable time, and it would cause him undue prejudice. (Opp., p. 3.) Specifically, Defendant asserts that discovery has been propounded and answered, and within those discovery requests, Plaintiff responded by admitting that April 24, 2018 was the correct date of breach.  (Opp., p. 2, 3-4; Fletcher Decl. ¶¶ 6-7, Exhs. C-D.) As a result, Defendant asserts that the Motion is disingenuous because it is merely an attempt to avoid an unfavorable determination on summary judgment. (Opp., pp. 5, 8.) Furthermore, Defendant questions the veracity of Plaintiff’s claim that a drafting error was the cause of it pleading the incorrect date of breach when Plaintiff verified and admitted that this was the correct date in response to Defendant’s discovery request.   Lastly, Defendant argues that Plaintiff’s counsel’s declaration fails to set forth sufficient facts to warrant relief under Code of Civil Procedure § 473, subdivision (b). (Opp., pp. 6-8.)

Upon consideration of the arguments presented the Court finds that the Motion does not sufficiently comply with all requirements of California Rules of Court, rule 3.1324. For instance, based on Defendant’s evidence, Plaintiff’s counsel’s supporting declaration does not sufficiently state why the amendment was not made earlier. Plaintiff’s counsel claims that he was not aware that the incorrect date of breach was alleged in the Complaint until he reviewed Defendant’s Motion for Summary Judgment. (Landsman Decl. ¶¶ 8-9.) However, this explanation is not believable when Defendant propounded on Plaintiff Requests for Admission on June 1, 2022, and one of these requests sought Plaintiff to admit that the alleged breach occurred on April 24, 2018. (Fletcher Decl. ¶ 6, Exh. C at pg. 5.) In response, Plaintiff unequivocally admitted this request. (Fletcher Decl. ¶ 7; Exh D at pg. 2.)  The only way to withdraw this admission to file a properly notice motion pursuant to Code of Civil Procedure § 2033.300. The motion can only be granted if the admission “was the result of mistake, inadvertence, or excusable neglect, and that the party who obtained the admission will not be substantially prejudiced in maintaining that party's action or defense on the merits.” (Code Civ. Proc. § 2033.300, subd. (b).)

Furthermore, relief pursuant to Code of Civil Procedure § 473, subdivision (b), is not appropriate for the following reasons. First, Plaintiff’s counsel’s declaration fails to set forth facts warranted mandatory relief under Section 473, subdivision (b). Second, under the discretionary relief prong, “[r]elief on grounds of mistake, inadvertence, surprise or excusable neglect is available only on a showing that the claimant's failure to timely present a claim was reasonable when tested by the objective ‘reasonably prudent person’ standard. (Lincoln Unified School Dist. v. Superior Court (2020) 45 Cal. App. 5th 1079, 1093.) Even if Plaintiff inadvertently pleaded the wrong date of breach and the incorrect damages, these mistakes would have been uncovered when answering Defendant’s requested admissions. Thus, it cannot be found that Plaintiff was acting reasonably in this regard.

Accordingly, the Motion is DENIED without prejudice.

IV.           Conclusion & Order

For the foregoing reasons, Plaintiff Veritext, LLC’s Motion for Leave to File Plaintiff’s First Amended Complaint is DENIED without prejudice.

Moving party is ordered to give notice.