Judge: Linda S. Marks, Case: 2021-01207635, Date: 2022-12-12 Tentative Ruling

Motion for Leave to File Amended Complaint filed by Bettie Blauser on 8/11/22

Plaintiff Bettie Blauser (“Plaintiff”) moves for leave to file a first amended complaint to delete from the Complaint all references to the January 1, 2017 Promissory Note that Defendants Eric J. Dubin and The Dubin Law Firm (“Defendants”) contend was property of the Bankruptcy Estate of WJA Asset Management, LLC.

“The court may [], in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.” (Code Civ. Proc., § 473(a)(1).) Additionally, any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order. (Code Civ. Proc., § 576.) California courts generally allow great liberality, at all stages of the proceeding, in permitting the amendment of pleadings in order to resolve cases on their merits. (IMO Development Corp. v. Dow Corning (1982) 135 Cal.App.3d 451, 461.) Thus, leave to amend to more clearly state a plaintiff’s theories of liability should be liberally allowed. (Rainer v. Buena Community Memorial Hospital (1971) 18 Cal.App.3d 240, 253-254.)

A motion to amend must also be accompanied by a separate declaration that specifies: (1) The effect of the amendment; (2) Why the amendment is necessary and proper; (3) When the facts giving rise to the amended allegations were discovered; and (4) The reasons why the request for amendment was not made earlier. (California Rules of Court, Rule 3.1324(b).)

Defendants argue the Declaration of Janice M. Vinci does not comply with the California Rules of Court and it should be Plaintiff who submits a declaration showing the requested amendment is necessary and proper and when she learned the facts giving rise to the amended allegations.

However, the Vinci Declaration substantially complies with the California Rules of Court requirements. It states that the Bankruptcy Court granted Plaintiff’s Motion to Remand on December 15, 2021, with instructions to Plaintiff to dismiss the Complaint as to the January 1, 2017 Note. (Declaration of Janice M. Vinci, ¶ 2.) Plaintiff filed a Request for Dismissal to dismiss all claims regarding the January 1, 2017 Note, which was entered on December 28, 2021. (Id., ¶ 3.) The Request for Dismissal was later vacated by the Court on May 26, 2022, because it purported to dismissal only certain claims rather than an entire cause of action as permitted by the Code of Civil Procedure. (Id., ¶ 4; ROA 67.)

Defendants argue that Plaintiff must explain the reasons for deleting the allegations involving the January Note because subsequent pleadings cannot simply omit allegations destructive of a cause of action without explanation. Defendant’s argument is inapt. It is true that when an initial complaint contains harmful allegations that show a cause of action does not lie and amendment to remove those allegations is sought, the plaintiff must provide adequate explanation. (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425.) However, this is not the case here. The allegations in Plaintiff’s Complaint are based not only on the January 2017 Note, but also the promissory note entered into on or about April 4, 2017 for the sum of $381,632.78. Plaintiff seeks to simply remove the allegations regarding the January Note, as she has now discovered that Defendants have paid that Note to the Bankruptcy Trustee. Nothing in the Complaint or proposed FAC shows that the allegations regarding the April 4, 2017 Note are improper or that further explanation as to the requested amendment is necessary. And “the sham pleading doctrine is not ‘intended to prevent honest complainants from correcting erroneous allegations . . . or to prevent correction of ambiguous facts.’ ” (Id., at p. 426.)

Tentative Ruling: Plaintiff’s Motion for Leave is GRANTED. Plaintiff to file the first amended complaint within five days.

Plaintiff to give notice.