Judge: Margaret L. Oldendorf, Case: 21AHCV00300, Date: 2023-01-06 Tentative Ruling

Case Number: 21AHCV00300    Hearing Date: January 6, 2023    Dept: P

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NORTHEAST DISTRICT

            I.         INTRODUCTION

            This action stems from a boundary dispute between two neighboring properties in South Pasadena. James Cheung initiated this litigation by suing his next-door neighbors Edmund Louie and Deborah Kotani. For ease of reference, the properties are referred to as the Cheung Property and the Louie Property. The source of conflict is a fence between the properties which has existed there for decades, but which encroaches on the Louie Property.

            Cheung sued for quiet title and property damage. The theory of his quiet title claim is that a decades old fence and hedge mark the true boundary rather than as the properties are described in deeds and surveys. Louie/Kotani’s demurrer for failure to state a cause of action was sustained on the ground that the “agreed boundary” doctrine does not apply because there is no uncertainty about where the boundary is located. Demurrers to the First and Second Amended Complaints were sustained on the same basis. No leave to amend was granted. What remains in the operative Second Amended Complaint is Cheung’s property damage cause of action. That claim concerns the allegation that Louie and Kotani engaged in unauthorized trimming of the border hedge.

            Louie and Kotani are pursuing a cross-complaint for quiet title and related claims. In a motion being heard concurrently, they seek summary judgment and/or adjudication as to their claims.

             Cheung seeks leave to file a Third Amended Complaint. Because the proposed pleading contains new causes of action based on events occurring while this action was pending, this is an improper motion to file a supplemental complaint and it is denied.

II.        LEGAL STANDARD

Code Civ. Proc. §473(a) allows courts to permit amendment of pleadings in furtherance of justice and on any terms as may be proper. Judicial policy strongly favors amendment. The general rule is liberal construction of pleadings and liberal allowance of amendments. Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.

            A court does not abuse its discretion in denying leave to amend where the proposed pleading fails to state a cause of action. If the pleading is defective and further amendment would be “futile,” such as when it is barred by the statute of limitations, leave to amend is properly denied.  Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 230-231.

            Courts have discretion to deny leave to amend where delay in seeking amendment has prejudiced the other party. Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.

            Cal. Rules of Court, Rule 3.1324(b) requires that a motion for leave to amend be accompanied by a declaration stating why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and the reason why the request for amendment was not made earlier.

            Code Civ. Proc. §464(a) provides that a plaintiff may be allowed, on noticed motion, to make a supplemental complaint alleging facts material to the case occurring after the former complaint.

III.      ANALYSIS

            Cheung’s motion is procedurally defective. In order to be heard this date, the motion needed to have been filed and served by December 13, 2022. This is so because December 26 and January 2 were court holidays and do not count towards the 16 days. According to the time stamp, it was filed at ten minutes to midnight on December 13, 2022. This meets the filing requirement. However, it was served via email at the same time and therefore did not provide the required the two days needed for electronic service.

            To the extent the motion may properly be considered a motion for leave to amend it contains additional procedural defects. The motion also does not do a good job of complying with Rule 3.1324. It does not lay out the allegations proposed to be added or deleted, and the declaration supporting the motion does not neatly cover all the items listed. But the declaration in essence states that new claims have arisen while this litigation has been pending and that Cheung now wants to add those claims. That being the case, the true nature of the motion is one for leave to file a supplemental rather than an amended pleading. Here is what a well-respected practice guide has to say:

a. [6:791] Function: A supplemental pleading is used to allege relevant facts occurring after the original pleading was filed. [CCP § 464(a); Foster v. Sexton (2021) 61 CA5th 998, 1032, 276 CR3d 172, 201 (citing text)]

(1) [6:792] Compare—amended pleadings: An amended pleading relates to matters existing when the original pleading was filed. [Foster v. Sexton, supra, 61 CA5th at 1032, 276 CR3d at 201 (citing text)] (Some courts ignore this distinction, however, and treat supplemental complaints as “amended” pleadings; see Honig v. Financial Corp. of America (1992) 6 CA4th 960, 967, 7 CR2d 922, 926.)

(a) [6:793] Example: P filed defamation action against D several months ago, seeking $50,000 damages. He now discovers that (a) the damage to his reputation was more widespread than he realized when the action was filed; and (b) that since the action was filed, D has republished the defamation, causing additional harm.

P should seek leave of court to amend his complaint to allege (a); and to supplement his complaint to allege (b).

 . . .

[6:797] Cannot allege “new” cause of action or defense: It follows that a supplemental pleading cannot be used to allege facts constituting a new cause of action or defense. I.e., the “occuring-after” facts must supplement the cause of action or defense originally pleaded. [Flood v. Simpson (1975) 45 CA3d 644, 647, 119 CR 675, 677]

(a) [6:798] Comment: Some cases apparently overlook this limitation and permit “amendments” that set forth new claims arising after commencement of the action. [See Honig v. Financial Corp. of America (1992) 6 CA4th 960, 966, 7 CR2d 922, 936—Employee’s defamation claim against Employer arose after harassment action filed; see ¶ 6:792]

But these seem incorrect; see ¶ 6:791.

            Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group, 2022), ¶¶ 6:791-6:793.

            Cheung’s existing complaint, the SAC, contains one cause of action for damage to personal property concerning the alleged unpermitted trimming of the border hedge. His proposed Third Amended Complaint adds claims for private nuisance, trespass, and infliction of emotional harm. These claims stem from work Louie and Kotani have had performed on their property while this action was pending.

            Because Cheung seeks to allege new claims that have arisen since the filing of his original complaint, the motion is in essence an improper motion for leave to file a supplemental pleading.            

IV.      CONCLUSION AND ORDER

            Cheung’s motion for leave to file a Third Amended Complaint is denied. It is an improper motion to file a supplemental complaint adding new causes of action based on events that occurred while this action was pending.

            This order is without prejudice to any appropriate motion either (1) for leave to amend the existing complaint to add claims and/or facts concerning events existing at the time the action as filed or (2) for leave to supplement the property damage claim by adding allegations concerning events that have transpired while this action was pending.

            Defendants and Cross-Complainants are ordered to give notice.

Dated:                                                                        _______________________________

                                                                                          MARGARET OLDENDORF

                                                                                 JUDGE OF THE SUPERIOR COURT