Judge Lynette Gridiron Winston, Case Number: 22PSCV00965, Date: 2025-02-06 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 22PSCV00965, Date: 2025-02-06 Tentative Ruling

Case Number: 22PSCV00965 Hearing Date: February 6, 2025 Dept: 6

CASE NAME: Daniel Richardson, et al. v. Bobbie W. Anne Mitchell, et al.

Cross-Complainant Bobbie W. Anne Mitchell’s Motion for Leave to File First Amended Cross-Complaint

TENTATIVE RULING

The Court GRANTS Cross-Complainant Bobbie W. Anne Mitchell’s motion for leave to file First Amended Cross-Complaint. Cross-Complainant must file and serve the proposed First Amended Cross-Complaint within five days of the Court’s order.

Cross-Complainant is ordered to give notice of the Court’s ruling within five calendar days of this order.

BACKGROUND

This is a real property dispute. On September 1, 2022, plaintiff Daniel Richardson and Karen K. Richardson (collectively, Plaintiffs) filed this action against defendant Bobbie W. Anne Mitchell (Defendant) and Does 1 through 5, alleging causes of action for declaratory relief, quiet title, and injunctive relief.

On October 5, 2022, Bobbie W. Anne Mitchell (Cross-Complainant) filed a cross-complaint against cross-defendants Daniel Richardson, Karen K. Richardson (collectively, Cross-Defendants), and Roes 1 through 10, alleging causes of action for quiet title, adverse possession, injunctive relief, and declaratory relief.

On January 8, 2025, Cross-Complainant Mitchell moved for leave to amend the cross-complaint. The motion is unopposed.

LEGAL STANDARD

Code of Civil Procedure section 473, subdivision (a)(1) provides, in relevant part: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, 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, subd. (a)(1).) This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047.)

Under Rule 3.1324, subdivision (a) of the California Rules of Court, a motion to amend a pleading shall (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. (Cal. Rules of Court, rule 3.1324, subd. (a).)

Under Rule 3.1324, subdivision (b) of the California Rules of Court, a separate declaration must accompany the motion and must 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. (Cal. Rules of Court, rule 3.1324, subd. (b).)

DISCUSSION

Summary of Arguments

Cross-Complainant seeks live to file a First Amended Cross-Complaint (FACC) to allege two additional causes of action (prescriptive easement and lateral support), amend paragraphs 13, 16, 21, and 24, to correct spelling and grammatical errors, and change all references to Cross-Complainant as “Cross-Complainant.” Cross-Complainant indicates that new information has recently come to light regarding when the fence was built, and that Plaintiff’s destruction of Cross-Complainant’s irrigation system following the removal of the fence has damaged the property. Cross-Complainant contends the facts for prescriptive easement are generally the same facts pleaded for the adverse possession claim, and that the lateral support claim did not ripen until the land subsided, as it took some time for the land to erode and collapse after Plaintiff destroyed Cross-Complainant’s irrigation system.

Analysis

Cross-Complainant’s motion does not fully comply with the requirements of Rule 3.1324 of the California Rules of Court. Cross-Complainant vaguely indicates some proposed changes to paragraphs 13, 16, 21, and 24, but does not indicate what those changes are and it is unclear from the proposed FACC what those changes are. (Motion, 4:6-9; Motion, Ex. A.) Cross-Complainant also does not provide the page or line number where the proposed changes are to be made. (Cal. Rules of Court, rule 3.1324, subd. (a).) The declaration submitted in support of the motion also does not indicate when the facts giving rise to the proposed changes were discovered. (Hall Decl., ¶¶ 3-4.)

But, the policy favoring amendments is strong. (Kittredge Sports Co. v. Superior Court, supra, 213 Cal.App.3d at p. 1047.) Moreover, given Cross-Defendants’ lack of opposition, the Court infers that Cross-Defendants concede to permitting Cross-Complainant to make the proposed changes. (See D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 728, fn. 4 [where nonmoving party fails to oppose a ground for a motion, "it is assumed that [nonmoving party] concedes" that ground].)

Based on the foregoing, the Court GRANTS the motion.

CONCLUSION

Cross-Complainant is ordered to give notice of the Court’s ruling within five calendar days of this order.