Judge: Loren G. Freestone, Case: 37-2021-00046780-CU-BC-CTL, Date: 2024-05-17 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - May 16, 2024

05/17/2024  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited  Breach of Contract/Warranty Motion Hearing (Civil) 37-2021-00046780-CU-BC-CTL IVEY VS MCCRAY [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Plaintiffs Chris Ivey and Diama Ivey's motion for leave to file a First Amended Complaint (FAC) is DENIED without prejudice.

Plaintiffs' motion does not state by page, paragraph, and line number the allegations to be deleted and/or added in the proposed amended pleading. (Cal. Rules of Court, rule 3.1324(a)(2)-(3).) Plaintiffs have acknowledged this omission and belatedly filed a Notice of Errata with a redlined copy of the proposed FAC. (ROA #119.) However, there is no proof of service indicating Plaintiffs served the Notice of Errata on Defendant Cleary. (See ROA #118 [only attesting to service of 'Plaintiffs' Reply to Opposition to Motion to File First Amended Complaint'].) Additionally, Plaintiffs have not complied with CRC rule 3.1324(b), which provides that a separate declaration must accompany the motion and specify (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. The declaration of Plaintiffs' counsel (Sabrina Green) filed with the moving papers states the proposed amended pleading 'only alleges the six (6) applicable assigned causes of action previously contained in the McCray/McRobb [ sic] Cross-Complaint filed on May 31, 2022, against Defendant Cleary.' (ROA #111, Sabrina Dec., ¶ 6.) However, Attorney Green's declaration does not explain the effect of the amended pleading on either the general allegations or the seven causes of action brought by Plaintiffs in their original Complaint, which also appear to have been modified. (See id. at Ex. 1, ¶¶ 1-5, 9-10, 13-54.) Additionally, Attorney Green states the amendment 'is necessary and proper' but does not explain why this is the case. (Id. at ¶ 6.) Although Attorney Green's declaration does not specifically state when Plaintiffs discovered the facts giving rise to the amended allegations, it appears the McCray Defendants assigned their claims to Plaintiffs through a settlement entered in April 2023. (ROA #111, Sabrina Dec., ¶ 4.) As to the reasons why the request for amendment was not made earlier, Attorney Green states 'I called in January 2024 to procure a hearing date and the May 17, 2024, date was the earliest date the Court could get on calendar.' (Id. at ¶ 7.) Attorney Green further states that Defendant Cleary's counsel indicated he would contact his client and provide a settlement offer prior to the February 2, 2024 TRC, but no offer was ever provided prior to that date, and Defendant Cleary's counsel never responded to efforts by Attorney Green. (Ibid.) These facts do not sufficiently explain why the request was not made earlier, given the settlement and assignment of claims occurred in April 2023.

Calendar No.: Event ID:  TENTATIVE RULINGS

3084490  45 CASE NUMBER: CASE TITLE:  IVEY VS MCCRAY [IMAGED]  37-2021-00046780-CU-BC-CTL In a reply declaration, Attorney Green provides additional information on why the request for leave to file the FAC was not made earlier. (ROA #117, Green Reply Dec., ¶¶ 3-10.) Preliminarily, there is no proof of service indicating Plaintiffs served the reply declaration on Defendant Cleary. (See ROA #117, 118.) Notwithstanding this procedural issue, Plaintiffs did not offer this evidence (which goes toward Plaintiffs' initial burden) until their reply papers, denying Defendant Cleary the opportunity to respond.

For these reasons, Plaintiffs' motion for leave to file an FAC is denied without prejudice.

Calendar No.: Event ID:  TENTATIVE RULINGS

3084490  45