Judge: Mary H. Strobel, Case: 21STCP03262, Date: 2022-07-26 Tentative Ruling

Case Number: 21STCP03262    Hearing Date: July 26, 2022    Dept: 82

            Petitioners Teresa Basil, May Wang, and Desiree Besharat (“Petitioners”) move for leave to file a first amended petition for writ of mandate and complaint for declaratory relief (“proposed FAP”) against Respondents 15115 Burbank Homeowners’ Association, Inc. and Michael Tedjasukmana (“Respondents”).

Procedural History

            On September 30, 2021, Petitioners filed their petition for writ of mandate, which was not verified and did not include a cause of action for declaratory relief. 

            On November 12, 2021, Respondents filed a demurrer, motion to strike, and declarations of attorney Ashton B. Inniss.  The Inniss declarations state that Respondents satisfied the meet and confer requirement.  The court received Petitioners’ oppositions, and Respondents’ replies.

            On January 10, 2022, Petitioners filed verifications of the petition. 

            On April 19, 2022, the court overruled Respondents’ demurrer and denied the motion to strike.  However, the court confirmed that Petitioners did not plead a basis for administrative mandate pursuant to CCP section 1094.5.  In response to a statement made by Petitioners that their “second and third reliefs sought are also purely declaratory,” the court also indicated that the petition did not include a claim for declaratory relief.  The court cited Local Rules 2.8(d) and 2.9 and stated that “[s]hould Petitioners seek declaratory relief, any such claim would be stayed pending resolution of the petition for writ of mandate.”

            On May 10, 2022, Petitioners filed this motion for leave to amend, the supporting declaration of attorney Shih-Chieh Wang, the proposed amended petition, and a red-lined version of the proposed amended petition.  The court has received Respondents’ opposition and Petitioners’ reply.

Analysis

Leave to amend at any time is liberally allowed in the interests of justice and in the absence of prejudice to another party, even up to the time of trial.  (Code Civ. Proc., §§ 473(a)(1) & 576; Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487.)  “[T]he trial court has wide discretion in allowing the amendment of any pleading.” (Record v. Reason (1999) 73 Cal.App.4th 472, 486.) 

“[It] is a rare case in which ‘a court will be justified in refusing a party leave to amend his pleadings so that he may properly present his case. [Citations.] If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense.”  (Morgan v. Sup. Ct. (1959) 172 Cal.App.2d 527, 530.)

“If the proposed amendment fails to state a cause of action, it is proper to deny leave to amend.”  (Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 230.)  However, “even if the proposed legal theory is a novel one, ‘the preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings.’”  (Kittredge Sports Co. v. Sup.Ct. (1989) 213 Cal.App.3d 1045, 1048.)

            A motion to amend a pleading before trial must be accompanied by a separate declaration that 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.  (CRC Rule 3.1324(b).)  The motion must also include a copy of the proposed amendment or amended pleading, and must show specifically, by page, paragraph, and line number, what changes were made.  (Rule 3.1324(a).) 

Effect of the Amendment

            The proposed amendments to the FAP fall into four categories: (1) non-substantive clerical corrections; (2) addition of new facts that post-date the original petition, including that Respondents sent Notices of Intent to Lien to Petitioners in October 2021; (3) addition of a new cause of action for declaratory relief; and (4) additions and changes to the prayer for relief.  (See Wang Decl. Exh. A, B.) 

Compliance with Rule 3.1324

The motion sufficiently complies with Rule 3.1324.  (See Wang Decl. ¶¶ 2-12, Exh. A, B.) 

Respondents contend that Petitioners do not offer a “satisfactory reason for the failure to learn of new facts” earlier.  (Oppo. 4.)  Petitioners’ counsel states that he purportedly learned of the facts giving rise to the amendment in February 2022. (Wang Decl. ¶ 2.)  As Respondents state, the declaration of Petitioners’ counsel does not state when counsel or Petitioners learned of certain new facts alleged in the FAP, specifically that Respondents sent Notices of Intent to Lien to Petitioners in October 2021.  (Oppo. 4; see FAP ¶¶ 1, 76.)   The court can infer that Petitioners learned of the notices when they were served in October 2021. Respondents’ argument goes to the timeliness of the motion, not compliance with Rule 3.1324.

Amendments to Prayer for First and Second Causes of Action

            Petitioners’ counsel declares that he discovered “not fully developed reliefs set forth in the operative Petition” on February 11, 2022.   (Wang Decl. ¶ 2.)  He did not seek leave to amend earlier because Respondents’ demurrer was set for hearing on April 19, 2022.  (Id. ¶ 3.)  The motion for leave to amend was filed on May 10, 2022, about three weeks after the court’s ruling on the demurrer.  Trial on the writ petition is set for October 18, 2022.

There was a delay in Petitioners seeking leave to amend with respect to the prayer for the first and second causes of action from September 30, 2021, when the petition was filed, until February 11, 2022.  The court notes that Petitioners filed their opposition to Respondents’ demurrer on January 14, 2022, and the opposition to the motion to strike on February 14, 2022.  Petitioners’ counsel may have decided that changes to the petition were needed when preparing the opposition to the motion to strike, although this is not stated by Petitioners’ counsel.  Possibly, Petitioners’ counsel simply did not realize that the prayer should be amended until the court’s ruling on the demurrer.  This delay is not great and does not, standing alone, justify denial of the amendment in the absence of prejudice to Respondents.  (See Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487; see Record v. Reason (1999) 73 Cal.App.4th 472, 486.) 

Amendments to Add New Facts Related to October 2021 Notice of Intent to Lien

The FAP would amend paragraph 1 to include the following allegation:

The purported board of Respondent 15115 Burbank HOA eventually passed a $70,000 special assessment on May 7, 2021. The purported board of Respondent 15115 Burbank HOA further decided to declare Petitioners on delinquencies on September 27, 2021. Petitioners filed this action on September 30, 2022 [sic]. Yet, Petitioners remained to receive the Notice of Intent to Lien on their homes on or about October, 2022 [sic] after the commencement of this action.  (Proposed FAP ¶ 1.) 

Later in the FAP, in the cause of action for declaratory relief, Petitioners would also add the following allegations among others:

75. On June 23, 2021, before the commencement of this action, Petitioners initiated their dispute resolution process with Respondent 15115 Burbank HOA, Petitioners’ counsel also provided written notices to Respondents, its management company’s employee, Jessica Lynn Norman, and Respondent 15115 Burbank HOA’s personal attorney, Jeanne McDonald stating as follows: “YOU are prohibited to contact [Petitioners] regarding any special assessment issues, pre-lien letter (Civ. Code §5660), or any communication related to $10,000 special assessment matter. YOU must direct YOUR communication to [Petitioners’] attorney listed above in this notice.”

76. On or about October 21, 2021, after the commencement of this action, Respondent 15115 Burbank HOA continued abusing its discretion by sending the Notice of Intent to Lien, directly, to all Petitioners, including relatives who do not hold ownership interests, through Best Alliance Foreclosure and Lien Services. The Notice states: “IF YOUR SEPARATE INTEREST IS PLACED IN FORECLOSURE BECAUSE YOU ARE BEHIND IN YOUR ASSESSMENTS, IT MAY BE SOLD WITHOUT COURT ACTION.”

(Proposed FAP ¶¶ 1, 75-76.) 

The proposed FAP is partially a “supplemental pleading” because Petitioners seek to allege some facts occurring after the petition was filed in September 2021.  “A ‘supplemental’ pleading is used to allege facts occurring after the original pleading was filed.”  (Foster v. Sexton (2021) 61 Cal.App.5th 998, 1032.)  “It is the general policy that courts should exercise liberality in permitting the filing of supplemental pleadings when the alleged ‘occurring-after’ facts are pertinent to the case.”  (Flood v. Simpson (1975) 45 Cal.App.3d 644, 647.) 

Here, paragraph 1 of the proposed FAP alleges certain new facts that are pertinent to the original petition for writ of mandate, including that Petitioners received the Notice of Intent to Lien in October 2021, after the petition was filed.  As noted above, the original petition sought a writ directing Respondents to “set[] aside the collection decision imposed on Petitioners” and to refrain from collecting “any delinquencies from Petitioners until the board election has been conducted.”  (Pet. pp. 14-15.)  Allegations concerning the October 2021 Notice of Intent to Lien are pertinent to that prayer and the original writ petition.  Petitioner did not unduly delay in seeking to add these allegations.

Amendment to Add Cause of Action for Declaratory Relief

Pursuant to the local rules which designate that Department 82 is a specialized Writs and Receivers department and not a general civil department, only a cause of action for writ of mandate is properly assigned to this department.  (LASC Local Rules 2.8(d) and 2.9.)  Local Rules 2.8(d) and 2.9 do not include a claim for declaratory relief as a special proceeding assigned to the writs departments.  As the court stated in its ruling on demurrer, any cause of action for declaratory relief would be stayed pending resolution of the writ petition.  Nonetheless,  these procedural rules do not prohibit a writs department from granting a motion for leave to amend a writ petition to include a cause of action for declaratory relief.    As with the other proposed amendments, while there was some delay in seeking to amend, the delay was not substantial.

Prejudice

Respondents argue they are prejudiced by the proposed amendment because it will likely result in delay of the trial.  As Petitioner notes, trial is not set until October 2022.  Respondents argue they may file another demurrer, which would result in delay and possible trial continuance.  That is up to Respondents.  Generally, a respondent can raise any bases for a demurrer in its opposition to the writ petition.  Respondents also assert Petitioners may demur to an amended answer once it is filed.  While the court agrees this could potentially result in a delay in trial, and would generally discourage Petitioner from filing that pleading, delay is not certain. 

The court will stay the declaratory relief claim pending its resolution of the writ claims.  Often, resolution of the writ claim will resolve the stayed declaratory relief claim as well.  If it does not, the court will send the declaratory relief claim to an individual calendar court to be tried.  While this would delay final resolution of the action, Respondents have not shown sufficient prejudice to support denial of leave to amend.

Conclusion

 The motion is GRANTED.