Judge Lynne M. Hobbs, Case Number: 22STUD03418, Date: 2024-09-17 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 22STUD03418, Date: 2024-09-17 Tentative Ruling

Case Number: 22STUD03418 Hearing Date: September 17, 2024 Dept: 61

HANNAH WOSNER, SUCCESSOR TRUSTEE OF THE WEISS FAMILY 2003 TRUST ( AS RESTATED) vs DUCKMILL, LLC (Commercial)

TENTATIVE

Plaintiff Hannah Wosner’s Motion for Leave to File First Amended Complaint is GRANTED. Plaintiff is granted leave to file the proposed amended complaint within 20 days of this order.

Plaintiff to give notice.

DISCUSSION

Code Civ. Proc. section 473 subd. (a)(1) states that:

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.

“The trial court has discretion to permit or deny the amendment of the complaint, but instances justifying the court's denial of leave to amend are rare.” (Armenta ex rel. City of Burbank v. Mueller Co. (2006) 142 Cal.App.4th 636, 642.) “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 [Citations], this policy should be applied only ‘[w]here no prejudice is shown to the adverse party . . .’ [Citation.] A different result is indicated ‘[w]here inexcusable delay and probable prejudice to the opposing party’ is shown. [Citation.]” (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487.)

Pursuant to California Rule of Court Rule 3.1324, “[a] motion to amend a pleading before trial must: (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.” Such a motion must include a supporting declaration stating, “(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.” (CRC Rule 3.1324, subd. (b).)

Plaintiff Hannah Wosner, successor Trustee of The Weiss Family 2003 Trust (Plaintiff) seeks leave to amend the Complaint, presently one for unlawful detainer, into one for breach of lease and breach of guaranty, asserted against present Defendant Duckmill, LLC (Defendant), as well as against new defendants Rami Haddad, My News Delivery, Inc., Encore Marketing Agency, Inc. and Southbay Distributors, Inc. Plaintiff reasons that the amendment is necessary because the real property at issue in the unlawful detainer action has been returned to Plaintiff, and this matter may now proceed to other relief as stated in Plaintiff’s proposed claims. (Motion at pp. 4–5.)

Plaintiff represents that possession of the premises has been returned as of July 7, 2023. (Motion at p. 3.) Plaintiff may therefore amend the pleading to seek relief other than possession, as provided under Civil Code § 1952.3:

a) Except as provided in subdivisions (b) and (c), if the lessor brings an unlawful detainer proceeding and possession of the property is no longer in issue because possession of the property has been delivered to the lessor before trial or, if there is no trial, before judgment is entered, the case becomes an ordinary civil action in which:

(1) The lessor may obtain any relief to which he is entitled, including, where applicable, relief authorized by Section 1951.2; but, if the lessor seeks to recover damages described in paragraph (3) of subdivision (a) of Section 1951.2 or any other damages not recoverable in the unlawful detainer proceeding, the lessor shall first amend the complaint pursuant to Section 472 or 473 of the Code of Civil Procedure so that possession of the property is no longer in issue and to state a claim for such damages and shall serve a copy of the amended complaint on the defendant in the same manner as a copy of a summons and original complaint is served. (Civ. Code § 1952.3, subd. (a)(1).)

Because possession has been surrendered, this is now an ordinary civil action, and Plaintiff may amend their complaint to assert the civil claims they now propose. The motion is therefore GRANTED.