Judge: Mary H. Strobel, Case: 22STCP02545, Date: 2022-10-20 Tentative Ruling

Case Number: 22STCP02545    Hearing Date: October 20, 2022    Dept: 82

            Petitioner Marvin Brown (“Petitioner”) moves for leave to file a second amended petition for writ of mandate and complaint for injunctive and declaratory relief. 

Procedural History

            On July 8, 2022, Petitioner, in pro per, filed a petition for writ of mandate to compel compliance with the California Public Records Act and Public Contract Code, and a complaint for declaratory and injunctive relief.  On July 26, 2022, Petitioner filed the operative first amended petition for the same causes of action. 

            On July 20, 2022, Petitioner filed a proof of service on form POS-040 purporting to show service of a “writ of mandamus” on Respondent Los Angeles Department of Water and Power on July 8, 2022.  An identical proof of service on form POS-040 was subsequently filed on October 13, 2022. 

            On September 16, 2022, the court denied Petitioner’s ex parte application to file a second amended petition.  The court noted that there was no appearance by Respondent.  The court set the motion for leave to file a second amended petition for hearing on October 20, 2020, and set a briefing schedule pursuant to CCP section 1005.

            On September 19, 2022, Petitioner filed the instant motion for leave to file second amended petition. 

            On October 13, 2022, Petitioner filed a proof of service on form POS-030 purporting to show mail service of the motion on Deputy City Attorney Drik P. Broersma of Respondent’s Legal Division on September 20, 2022. 

            No appearance by Respondent has been made in this action.  No opposition to the motion for leave to amend has been received.

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.) 

            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).) 

Service of Petition

            Petitioner has not shown proper service of the petition on Respondent.  The proofs of service filed July 20, 2022, and October 13, 2022, purport to show personal service of a “writ of mandamus,” which presumably refers to the original petition, by service on Ruth Stricklin of LADWP.  However, the proofs of service do not specify the title of Stricklin or capacity in which she was served, as required by statute.  (CCP § 417.10(a).)  Petitioner was also required by statute to file proof of personal service of the petition on the form adopted by the Judicial Council.  (§ 417.10(f) [“All proof of personal service shall be made on a form adopted by the Judicial Council.”].)  Petitioner failed to do so.  Instead, Petitioner used Judicial Council form POS-040, which states “Do not use this form to show service of a summons and complaint.”  The form POS-040 is inadequate to prove personal service of the petition because the declaration of personal service does not specify whether the papers were actually delivered to an authorized agent of the respondent, as required by statute.  (See CCP § 417.10(a) [affidavit must show “the time, place, and manner of service and facts showing that the service was made in accordance with this chapter”]; § 415.10 [“A summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served.”]; § 416.50(a) [“A summons may be served on a public entity by delivering a copy of the summons and of the complaint to the clerk, secretary, president, presiding officer, or other head of its governing body.”].) 

            Here, the court cannot ascertain from the proof of service filed whether Respondent has been properly served.  The proof of service does not state the time the Petition was served or provide any information regarding Stricklin’s title or authority to accept service on behalf of DWP.

Service of Motion

            The proof of service for the motion shows service of the motion on Deputy City Attorney Drik P. Broersma of Respondent’s Legal Division on September 20, 2022.  Had the Petition been properly served, the notice of motion may be served by mail.  Here, however, the court cannot determine the petition has been properly served.  Additionally, since the Respondent has not appeared in the action, the court cannot tell whether Deputy City Attorney “Drik Broersma” is the attorney to whom the matter has been assigned.  Petitioner should explain at the hearing how he obtained the name of Deputy City Attorney Broersma in association with this case.  Petitioner must properly serve the petition prior to the court ruling on a motion for leave to amend.

Compliance with Rule 3.1324

Should Respondent appear at the hearing and waive the service issue, the court notes that the motion does not fully comply with Rule 3.1324.  Petitioner files a declaration that explains generally why the request for amendment was not made earlier.  Petitioner also explains the effect of the amendments generally in his declaration and motion.  However, Petitioner has not filed a redlined copy of the proposed amended petition and the motion does not show specifically, by page, paragraph, and line number, what changes were made.  (Rule 3.1324(a).)  This latter defect is not jurisdictional, but does make it more difficult for the court to determine the proposed changes to the petition. 

Merits of Motion

The court has not received any opposition to the proposed amendment.  Petitioner filed the original petition in July 2022, and he seeks leave to amend only three months later.  Petitioner explains that “[t]he initial writ of mandamus was filed expeditiously to prevent the award of a contract without first seeing the bid results.”  (Pet. Decl. 6:15-16.)  Apparently based on new evidence obtained after the petition was filed, including bid results, Petitioner states: “Respondent is violating state and federal laws to award an unlawful contract to Pandora Consulting Associates, LLC (Pandora). Pandora’s proposal is non-responsive, non-compliant, overbudget, out-of-competitive range and contains fraudulent misrepresentations. These new findings end evidence render Pandora’s proposal ineligible for contract award.”  (Mot. 1; see also Proposed SAP ¶ 55 [“The evidence shows Pandora’s proposal is ineligible and should have been disqualified by the evaluation committee because it contained many catastrophic fatal flaws.”])  Among other relief, the proposed second amended petition seeks an injunction against Respondent “recommending and awarding contracts on proposals that are non-responsive, non-compliant, out-of-competitive range.”  (Proposed SAP Prayer ¶ 5.)

Pandora could plausibly be a necessary party to this litigation.  However, that issue could be tested by demurrer or other challenge to the pleading.  Considering that the proposed second amended petition would be filed about three months after the petition was filed, and Petitioner has explained the delay, the court would find good cause for the proposed amendments should Respondent waive the defect in service of the petition. 

Conclusion

Unless Respondent appears at the hearing and waives the service issue, the court will deny the motion for leave to amend without prejudice to renewal after the petition has been served on Respondent.