Judge Mark E. Windham, Case 21STLC02968 2022-09-14 Tentative Ruling

Judge: Mark E. Windham, Case: 21STLC02968, Date: 2022-09-14 Tentative Ruling

Case Number: 21STLC02968 Hearing Date: September 14, 2022 Dept: 26

LEAVE TO AMEND PLEADING

(CCP §§ 473(a), 576; CRC Rule 3.1324)

TENTATIVE RULING:

Plaintiff Daryoush Javaheri’s Motion for Leave to File First Amended Complaint is GRANTED. PLAINTIFF IS TO FILE AND SERVE THE FIRST AMENDED COMPLAINT BY OCTOBER 4, 2022. PROOF OF SERVICE OF THE FIRST AMENDED COMPLAINT IS TO BE FILED CONCURRENTLY.

FOR GOOD CAUSE, THE HEARING ON DEFENDANT WILSHIRE MANNING HOMEOWNERS ASSOCIATION’S MOTION FOR SUMMARY JUDGMENT IS CONTINUED TO OCTOBER 11, 2022 AT 10:00 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

SERVICE:

[X] Proof of Service Timely Filed (CRC 3.1300) OK

[X] Correct Address (CCP 1013, 1013a) OK

[X] 16/21 Day Lapse (CCP 12c and 1005(b)) OK

SUMMARY OF COMPLAINT: Action for money had and received and unjust enrichment.

RELIEF REQUESTED: Allow Plaintiff to file a First Amended Complaint to add causes of action based on newly discovered information.

OPPOSITION: Plaintiff fails to set forth good cause for an eleventh hour attempt to amend the complaint by alleging new, fraud-based causes of action. The proposed amendment will require a continuance of the trial date to allow Defendant to bring a demurrer.

REPLY: None filed as of September 12, 2022.

ANALYSIS:

Plaintiff Daryoush Javaheri (“Plaintiff”), in pro per, filed the instant action for money had and received and unjust enrichment against Defendant Wilshire Manning Homeowners Association (“Defendant”) on April 13, 2021. Defendant filed its Answer on July 15, 2021.

Plaintiff filed the instant Motion for Leave to File First Amended Complaint on May 13, 2022, concurrently with the First Amended Complaint. Defendant filed an opposition on August 31, 2022. The Court notes that the opposition was untimely served on the same date by electronic mail, which adds two court dates to the notice period. (Code Civ. Proc., § 1010.6, subd. (a)(4)(B).)

Discussion

Plaintiff moves for leave to file a First Amended Complaint to add causes of action for negligent misrepresentation and intentional misrepresentation, purportedly based on additionally discovered information. (Notice of Motion, p. 1:19-21.) The Motion is brought pursuant to Code of Civil Procedure section 473, subdivision (a) and 576, which permit leave to amend upon the Court’s order. A motion for leave to amend a pleading must also comply with the procedural requirements of California Rules of Court, Rule 3.1324, which requires a supporting declaration to set forth explicitly what allegations are to be added and where, and explicitly stating what new evidence was discovered warranting the amendment and why the amendment was not made earlier. The motion must also include (1) a copy of the proposed and numbered amendment, (2) specifications by reference to pages and lines the allegations that would be deleted and added, and (3) a declaration specifying the effect, necessity and propriety of the amendments, date of discovery and reasons for delay. (Cal. Rules of Court, Rule 3.1324, subds. (a), (b).)

A copy of the First Amended Complaint was filed concurrently with the instant Motion and the supporting declaration sets forth what changes are to be made to the Complaint and the effect of those changes. (Motion, Javaheri Decl., ¶1.) However, the supporting declaration does not specify what new evidence was uncovered during discovery that support the fraud causes of action. (Motion, Javaheri Decl., ¶¶1-3.) The Court notes that the policy favoring amendment and resolving all matters in the same dispute is “so strong that it is a rare case in which denial of leave to amend can be justified. . . .” (Magpali v. Farmers Group (1996) 48 Cal.App.4th 471, 487.) “A different result is indicated ‘where inexcusable delay and probable prejudice to the opposing party’ is shown. [Citation].” (Ibid.)

Here, the Court finds there is neither inexcusable delay in seeking leave to amend or prejudice to Defendant. The Motion while set to be heard less than a month before the October 11, 2022 trial date, was filed five months prior to the pending trial. In fact, the Motion was filed in advance of Defendant’s Motion for Summary Judgment. Nor has Defendant demonstrated that it will be prejudiced by allowing leave to amend. No prior continuance of the trial date has been sought and the opposition is not supported by any declaration, let alone a declaration indicting that trial must go forward on October 11, 2022. Plaintiff’s only failure was compliance with all the procedural requirements set forth in Rule 3.1324, which the Court declines to find a basis to deny the Motion.

Conclusion

Court clerk to give notice.