Judge Kerry Bensinger, Case Number: 22STCV23823, Date: 2023-11-28 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

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The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

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**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

On July 25, 2022, Plaintiff, Monique Cooper, filed a Complaint against Defendants, B. Ruth Allen, Leonard F. Delpit, and Charles S. Clark, for wrongful eviction. The Complaint was partially handwritten and included exhibits that were not clearly referenced in the allegations. Plaintiff was self-represented at the time of the filing of the Complaint.

On September 5, 2023, Plaintiff filed this motion for leave to file the proposed First Amended Complaint (FAC). The motion was heard on November 28, 2023. Defendant B. Ruth Allen correctly pointed out that the proposed FAC was not attached to the motion. The Court also noted that although the proposed pleading was separately filed with the Court on September 5, 2023, there was no proof of service showing the proposed pleading was served on Defendants. As such, the Court continued the hearing for this motion to January 5, 2024 and directed Plaintiff to file an amended motion with the proposed FAC.

On December 28, 2023, Plaintiff filed an amended motion and proof of service. No opposition has been filed to the amended motion.

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 proposed pleading adds claims for Negligent Breach of the Implied Warranty of Habitability, Intentional Breach of the Implied Warranty of Habitability, Nuisance (Negligent), Nuisance (Intentional), Negligent Infliction of Emotional Distress, Intentional Infliction of Emotional Distress, Breach of Implied Covenant of Quiet Use and Enjoyment, Negligent Violation of Statutory Duty, Retaliation/Constructive Eviction, and Child Endangerment, as well as factual and legal allegations. Additionally, although not explicitly stated in the motion, Plaintiff seeks to add her grandson, Jayon Levon, as a plaintiff, and B. Ruth Allen Trust as a defendant. The foregoing parties, claims, and allegations were left out of the Complaint because Plaintiff’s counsel, having only recently substituted into this case, was unable to review the pleading before it was filed. As such, Plaintiff contends it is in the interests of justice that leave be granted to file the proposed FAC

Based on the foregoing, the Court finds that Plaintiff is entitled to an order granting leave to file the proposed pleading. Moreover, Plaintiff has cured the defect noted in the Court’s previous order. Plaintiff filed an amended motion with the proposed FAC attached and has included proof of service to Defendants. The motion now complies with the requirements of California Rules of Court, rule 3.1342(a). Further, as the amended motion is unopposed, the Court finds no prejudice will result if leave is granted to file the proposed FAC.

The motion is GRANTED. Plaintiff’s First Amended Complaint is deemed filed on September 5, 2023.

Defendants are to file and serve their responsive pleading within 30 days of the date of this order.

Kerry Bensinger

Judge of the Superior Court