Judge Kerry Bensinger, Case Number: 19STCV05642, Date: 2024-02-28 Tentative Ruling

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CASE: Garcia Legal v. Esperanza Molina as Trustee of the Esperanza Molina Trust, et al.

On February 19, 2019, Plaintiff, Garcia legal, filed a Judicial Council Form Complaint against Defendants, Esperanza Molina, individually and as Trustee of the Esperanza Molina Trust, for (1) Breach of Contract; (2) Common Counts; and (3) Declaratory Relief. The following facts are not in dispute: Monica Molina, a lawyer, filed a quiet title action—Molina v. 304 Crane LLC, LASC Case No. BC659809—in April 2017 on behalf of her mother Esperanza Molina. In September 2017, Monica consulted Plaintiff to assist in the quiet title action. Thereafter, Garcia Legal agreed to associate as counsel for Esperanza. A copy of the legal services agreement is attached as Exhibit A to the Complaint. Plaintiff negotiated a settlement of the case. However, prior to completing the settlement documents, Monica notified Plaintiff that it was being terminated as counsel. At the time of the termination, Esperanza owed Garcia Legal nearly $32,000 in legal fees.

Plaintiff further alleges Esperanza had another quiet title claim regarding the purchase of two burial crypts at Forest Lawn Glendale (“Forest Lawn Action”). The Forst Lawn Action is filed as LASC Case No. 19DGCV00863. Esperanza learned that another person had been buried in one of the crypts even though she had paid for them and never transferred ownership. Monica also brought this claim to Plaintiff when consulting Plaintiff in September 2017. Esperanza later retained Plaintiff to handle this matter as well. The legal services agreement was modified to give Plaintiff a partial contingent fee of 25% of the recovery from Forest Lawn. The modification is attached as Exhibit B to the Complaint. The declaratory relief cause of action directly concerned Plaintiff’s right to fees in that matter. Plaintiff was likewise terminated as counsel for Esperanza in the Forest Lawn Action. Prior to Plaintiff’s termination, Plaintiff had drafted and sent a demand letter and a proposed complaint to Forest Lawn.

On April 6, 2020, Plaintiff dismissed the Third Cause of Action for Declaratory Relief. Defense counsel argued, and Plaintiff agreed, that Plaintiff’s claim in the Forest Lawn Action was not yet ripe. At the time, the Forest Lawn Action was pending.

On May 26, 2020, Esperanza filed a Cross-Complaint against Plaintiff for Breach of Contract and Common Counts.

On August 24, 2020, Plaintiff filed a Cross-Complaint against Monica for Indemnity.

On November 30, 2020, the parties in the Forest Lawn Case notified the court that the case had settled. On the same day, Monica filed an anti-SLAPP motion against Plaintiff’s Cross-Complaint against Monica. Monica’s motion was denied in April 2021, which Monica appealed.

This action was stayed until the Court of Appeal issued a remittitur affirming the denial of Monica’s anti-SLAPP motion in May of 2023.

On December 19, 2023, Plaintiff filed this motion for leave to file the proposed First Amended Complaint (FAC) to re-add the Third Cause of Action for Declaratory Relief and to add a Fourth Cause of Action for Common Counts.

The court may, in its discretion and after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading, including adding or striking out the name of any party, or correcting a mistake in the name of a party, or a mistake in any other respect.¿ (Code Civ. Proc., § 473, subd. (a)(1).)¿ “Public policy dictates that leave to amend be liberally granted.”¿ (Centex Homes v. St. Paul Fire & Marine Ins. Co. (2015) 237 Cal.App.4th 23, 32.)¿ “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 . . . 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, Inc. (1996) 48 Cal.App.4th 471, 487.)¿

A motion to amend a pleading must include a copy of the proposed amendment or amended pleading which must be serially numbered to differentiate it from previous pleadings or amendments and must state what allegations in the previous pleading are proposed to be deleted or added, if any, and where, by page, paragraph, and line number, the allegations are located. (Cal. Rules of Court, rule 3.1324(a).)¿ The motion shall also be accompanied by a declaration attesting to the effect of the amendment, why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and why the request for amendment was not made earlier.¿ (Cal. Rules of Court, rule 3.1324(b).)¿

In ruling on a motion for leave to amend a pleading, the court does not consider the merits of the proposed amendment, because “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.”¿ (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.)¿ While the court may deny leave to amend where the proposed amendment is insufficient to state a valid cause of action or defense, such denial is most appropriate where the insufficiency cannot be cured by further amendment—i.e., where the statute of limitations has expired or the insufficiency is established by controlling caselaw. (California Casualty Gen. Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 280-281, disapproved on other grounds in Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390.)¿

Plaintiff seeks leave to file the proposed FAC. The effect of the amendment is to re-add a claim for declaratory relief as the Forest Lawn Action has concluded. (Garcia Decl., ¶ 14.) A copy of the proposed pleading is attached to the motion.

Esperanza opposes the motion on the sole ground that the proposed amendment would add new facts and issues adding a degree of complexity to this action. This argument is not well taken. Plaintiff’s initial complaint set forth a cause of action for declaratory relief based on Plaintiff’s representation of Esperanza in the Forest Lawn Action. A modification to the retainer agreement between Plaintiff and Esperanza was attached to the Complaint. Further, it is undisputed that Plaintiff dismissed the Third Cause of Action because that claim had not yet ripened. However, the Forest Lawn Action has settled. Plaintiff’s declaratory relief claim is now ripe. Further, the proposed cause of action for common counts is also based on the legal services rendered in the Forest Lawn Action. Esperanza does not show the proposed amendment will necessitate a new set of claims and defenses, or new and different legal issues, especially when she has been on notice of Plaintiff’s claims to any recovery Esperanza obtained in the Forest Lawn Action. ,

The motion is GRANTED. Plaintiff is ordered to file and serve its First Amended Complaint within 10 days of this order.[1]

Kerry Bensinger

Judge of the Superior Court

[1] Given the age of this case, counsel for Plaintiff is to file a Five Year status report identifying the calculation of the “five-year rule” after considering application of Emergency Rule 10 and time that may be tolled due to the case being on appeal. This status report is due along with the filing of the First Amended Complaint.