Judge Mel Red Recana, Case Number: 20STCV26713, Date: 2024-11-20 Tentative Ruling

All rulings shown here are TENTATIVE ONLY, and thus oral argument WILL be heard. All Counsel are still required to attend.

Superior Court of California

County of Los Angeles

Cross-Defendants The Pitts Group, Inc. and Le Toi Scott’s Demurrer to Cross-Complainants Obidi A. Obienu and Adreana J. Obienu’s First Amended Cross-Complaint

The court SUSTAINS The Pitts Group, Inc. and Le Toi Scott’s demurrer to the First Amended Cross-Complaint, WITHOUT LEAVE TO AMEND.

Plaintiffs Guadalupe Sanchez, Alejandro Arias, Benito Arias, and Martin Arias filed this action on July 16, 2020 against Defendants Obidi A. Obienu, Adreana J. Obienu, Reginald Evans, and The Pitts Group, Inc. Plaintiffs filed the operative Second Amended Complaint (SAC) on May 16, 2023, alleging fourteen causes of action arising from habitability issues with a residential property located at 1510 ½ W. Florence Avenue, Los Angeles, CA 90047 and Defendants’ attempt to evict Plaintiffs without paying relocation fees. The SAC alleges Defendants Obidi A. Obienu and Adrena J. Obienu owned the residential property and that Defendant The Pitts Group, Inc. arranged the sale of the residential property. (SAC, ¶¶ 12-13.)

On September 13, 2022, Cross-Complainants and Defendants Obidi A. Obienu and Adrena J. Obienu (the Obienus) filed a Cross-Complaint against Cross-Defendant and Defendant The Pitts Group, Inc. (Pitts Group) for Indemnity. Pitts Group answered on October 14, 2022.

The FACC alleges the following: The Obienus informed Pitts Group and Scott, via the purchase agreement, that the residential property must be vacant at the time of closing. (FACC, p. 3.) However, Scott allowed the escrow to close while the tenants were still in possession. (Ibid.) Scott also informed the Obienus that the property was vacant at the time of the closing of the escrow. (Ibid.) Scott knew seller Reginald Evans had a written agreement with the tenants dated December 12, 2019 which allowed the tenants to stay in possession for 45 days upon payment by Mr. Evans to the tenants in the amount of $8,000.00 “which was only 27 days.” (Ibid.) The tenants failed to vacate within 45 days of December 12, 2019, and the Obienus had to pay the tenants an additional $15,000.00 to vacate the premises. (Ibid.) The tenants did not vacate the property until December of 2020 resulting in the loss of rent and the delay of the re-habitation of the property resulting in further damage to the Obienus.

On June 17, 2024, Pitts Group filed a Declaration of Demurring Party in Support of Automatic Extension. (Declaration of Jason Murphy, Esq. [Murphy Decl.], Exh. 3.)

When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Pitts Group and Scott ask the court to take judicial notice of the Obienus’ FACC. The court GRANTS this request.

Before filing a demurrer or motion to strike, the moving party must engage in a specified meet and confer process with the party who filed the pleading at issue for the purpose of determining whether an agreement can be reached as to the filing of an amended pleading that would resolve the objections to be raised in the demurrer/motion to strike. (Code Civ. Proc., § 430.41, subd. (a).) If the parties are unable to come to an agreement, a declaration setting forth such meet and confer efforts must accompany the demurrer and motion to strike. (Code Civ. Proc., § 430.41, subd. (a)(3).)

Here, Pitts Group and Scott’s counsel, Jason Murphy, declares he has attempted contact the Obienus’ counsel on multiple occasions. First, on May 14, 2024, Murphy emailed opposing counsel stating the Obienus did not have leave to file the FACC nor would Murphy stipulate to the changes in the FACC. (Murphy Decl., ¶ 26, Exh. 2.) Murphy also stated he would not stipulate to the changes in the FACC because the changes were false based on the Obienus’ discovery response in January 2022, April 2022, September 2022, and June 2024. (Murphy Decl., ¶¶ 25, 31, Exhs. 2, 3.) On June 25, 2024, Murphy followed up with opposing counsel on the same issues. (Murphy Decl., ¶ 29, Exh. 4.) Opposing counsel did not respond to any of these emails or file an opposition. (Murphy Decl., ¶ 30.)

Pitts Group and Scott demur to the first cause of action for Indemnity on the following grounds: (1) the court has no jurisdiction under Civil Procedure Code section 430.10, subdivision (a); and (2) the cause of action is uncertain under Civil Procedure Code section 430.10, subdivision (f).

First, Pitts Group and Scott argue the court lacks jurisdiction over the indemnity cause of action because the Obienus filed the FACC, after an answer was filed to the original Cross-Complaint, without first seeking leave of the court. The FACC made substantive changes including adding a second cause of action for negligence and adding a second party, Scott.

“A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike.” (Code Civ. Proc., § 472 [emphasis added].) “A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties.” (Ibid.) “The time for responding to an amended pleading shall be computed from the date of service of the amended pleading.” (Ibid.)

The court finds that it lacks jurisdiction over the FACC because the Obienus filed the FACC without leave of the court and without a stipulation of Pitts Group and Scott. The Obienus filed their Cross-Complaint on September 13, 2022. Pitts Group answered on October 14, 2022. The Obienus then filed the FACC on May 14, 2024, before Pitts Group and Scott demurred on July 17, 2024.

Accordingly, the court sustains the demurrer to the first cause of action for lack of jurisdiction.

Next, Pitts Group and Scott argue that the indemnity cause of action is uncertain because it is unclear what negligence the Obienus are pleading: personal or property. The FACC also causes statute of limitation and the relation back doctrine issues. Indemnity and Negligence claims must be brought within two years under Civil Procedure Code section 335.1 or three years under Civil Procedure Code section 338, subdivision (d). To fall within the 3-year limit, the Obienus needed to file their claims against Scott no later than July 17, 2023, three years after the original Complaint was filed. Additionally, the Obienus were not genuinely ignorant of Scott’s role in this matter because she was their real estate agent. (Demurrer, p. 6:17-24.)

“[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3, quoting Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s California, Inc. (1993) 14 Cal.App.4th 612, 616.)

A party must file personal injury claims based upon negligence within two years of the negligent act which caused the injuries. (Code Civ. Proc., § 335.1.) To recover for negligence relating to property, the party must commence the cause of action within three years of discovering the injury. (Code of Civ. Proc., § 338, subds. (c)(1), (d).)

For an amended complaint to relate back to the original complaint as to named parties, the amended complaint must be based on the “same general set of facts” as the original complaint, seek recovery against the same defendants for same “injuries,” and refer to the “same incident.” (Barrington v. A. H. Robins Co. (1985) 39 Cal.3d 146, 150; see also Pointe San Diego Residential Comm., L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 277 [“[The] critical inquiry is whether the defendant had adequate notice of the claim based on the original pleading, [and] in applying the relation-back analysis, courts should consider the strong policy in this state that cases should be decided on their merits.” (internal quotes omitted)].].) For new theories of liability or damages, the amendments must be “based on the same set facts previously alleged.” (Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4^th 1157, 1200 [citing Grudt v. City of Los Angeles (1970) 2 Cal.3d 575, 583-584.].)

The court finds that the FACC is uncertain because the FACC lacks key facts to explain the type of liability sought and the nature of Scott’s relationship with Pitts Group and the Obienus. Additionally, the FACC alleges Scott allowed the escrow to close while tenants were still in possession but does not allege the date on which the escrow closed. The FACC only states the tenants vacated the property in December 2020. Without this information, the court cannot determine the date of injury for a negligence or indemnity claim to address the “relate back” issue.

Accordingly, the court also sustains the demurrer to the first cause of action for uncertainty.

Thus, the court SUSTAINS Pitts Group and Scotts’ demurrer to the first cause of action on the grounds of uncertainty and lack of jurisdiction.

Pitts Group and Scott demur to the second cause of action for Negligence on the following grounds: (1) the court has no jurisdiction under Civil Procedure Code section 430.10, subdivision (a); (2) the FACC fails to state facts sufficient to constitute a cause of action under Civil Procedure Code section 430.10, subdivision (e); and (3) the cause of action is uncertain under Civil Procedure Code section 430.10, subdivision (f).

Pitts Group and Scott argue that the court lacks jurisdiction over the negligence cause of action because the Obienus filed the FACC, after an answer was filed to the original Cross-Complaint, without first seeking leave of the court. The FACC made substantive changes including adding a second cause of action for negligence and adding a second party, Scott.

For the same reasons stated above for the first cause of action, the court also sustains the demurrer to the second cause of action for lack of jurisdiction.

Pitts Group and Scott argue that the FACC fails to sufficiently argue a negligence cause of action because the FACC fails to state acts by Pitts Group which constitute negligence. The FACC only refers to Scott’s acts.

To plead negligence, a complaint must establish the defendant had a legal duty of care, the defendant breached the duty, and the breach proximately caused the resulting injury. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) “Breach is the failure to meet the standard of care.” (Coyle v. Historic Mission Inn Corp. (2018) 24 Cal.App.5th 627, 643.) “The element of causation requires there to be a connection between the defendant’s breach and the plaintiff’s injury.” (Id. at p. 645.)

The court finds that the FACC fails to state a claim for negligence against both Pitts Group and Scott. As to Pitts Group, the FACC alleges only acts by Scott. As to Scott, the FACC fails to allege that Scott owed a legal duty to the Obienus. The FACC also fails to allege any relationship between Scott and the Obienus which would give rise to a legal duty.

Accordingly, the court sustains the demurrer to the second cause of action for failure to state facts sufficient to sustain a negligence claim.

Pitts Group and Scott argue that the negligence cause of action is uncertain because the FACC does not make specific allegations against Pitts Group, and the statute of limitations bars adding a new cause of action and a new party. Specifically, Pitts Groups and Scott state the Obienus cannot use the related back doctrine to implicate Scott because the Obienus were aware of Scott’s role at the time of the close of escrow because she was the Obienus’ real estate agent.

For an amended complaint to relate back to the original complaint as to named parties, the amended complaint must be based on the “same general set of facts” as the original complaint, seek recovery against the same defendants for same “injuries,” and refer to the “same incident.” (Barrington v. A. H. Robins Co. (1985) 39 Cal.3d 146, 150; see also Pointe San Diego Residential Comm., L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 277 [“[The] critical inquiry is whether the defendant had adequate notice of the claim based on the original pleading, [and] in applying the relation-back analysis, courts should consider the strong policy in this state that cases should be decided on their merits.” (internal quotes omitted)].].) For new theories of liability or damages, the amendments must be “based on the same set facts previously alleged.” (Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1200 [citing Grudt v. City of Los Angeles (1970) 2 Cal.3d 575, 583-584.].) To defeat an amendment based on genuine ignorance, the defendant must prove plaintiff’s earlier awareness of a new defendant’s identity and facts creating the defendant’s liability. (Fara Estates Homeowners Ass’n v. Fara Estates, Ltd. (9th Cir. 1998) 134 F.3d 377, 377.)

The court finds that the FACC is uncertain regarding Pitts Group because the FACC only states the Obienus told Pitts Group the residential property must be vacant by the escrow closing. The FACC states no other facts giving rise to negligence by Pitts Group.

The court finds that the FACC is uncertain regarding Scott because the FACC does not allege facts showing the Obienus were genuinely ignorant of Scott’s identity and liability when Plaintiffs commenced this case in 2020. Additionally, as mentioned above, the FACC does not establish Scott owed the Obienus a legal duty and that her actions breached such a duty. Without facts establishing a duty of care and statements showing the Obienus’ ignorance of Scott’s identity and liability, the court finds the related back doctrine does not apply.

Accordingly, the court sustains the demurrer to the second cause of action due to uncertainty.

Thus, the court SUSTAINS Pitts Group and Scotts’ demurrer to the second cause of action on the grounds of uncertainty, failure to state a claim, and lack of jurisdiction.

Superior
Court of California

County of Los Angeles

Moving Parties: Cross-Complainants/Defendants
Obidi A. Obienu and Adreana J. Obienu

Responding Party: Cross-Defendant/Defendant
The Pitts Group, Inc. and Cross-Defendant Le Toi Scott

Cross-Complainants/Defendants Obidi A. Obienu and
Adreana J. Obienu’s Motion to File a First Amended Cross-Complaint [1]

The court DENIES
Obidi A. Obienu and Adreana J. Obienu’s Motion to File a Cross-Complaint.

Plaintiffs
Guadalupe Sanchez, Alejandro Arias, Benito Arias, and Martin Arias filed this
action on July 16, 2020 against Defendants Obidi A. Obienu, Adreana J. Obienu,
Reginald Evans, and The Pitts Group, Inc. Plaintiffs filed the operative Second
Amended Complaint (SAC) on May 16, 2023, alleging fourteen causes of action
arising from habitability issues with a residential property located at 1510 ½
W. Florence Avenue, Los Angeles, CA 90047 and Defendants’ attempt to evict Plaintiffs
without paying relocation fees. The SAC alleges Defendants Obidi A. Obienu and
Adrena J. Obienu owned the residential property and that Defendant The Pitts
Group, Inc. arranged the sale of the residential property. (SAC, ¶¶ 12-13.)

On September 13,
2022, Cross-Complainants/Defendants Obidi A. Obienu and Adrena J. Obienu (the
Obienus) filed a Cross-Complaint against Cross-Defendant/Defendant The Pitts
Group, Inc. (Pitts Group) for Indemnity. Pitts Group answered on October 14,
2022.

On May 14, 2024,
the Obienus filed a First Amended Cross-Complaint (FACC) to include Cross-Defendant
Le Toi Scott (Scott). The FACC alleges causes of action for Indemnity and Negligence.
(FACC, p. 3.) The Obienus did not seek leave of the court nor did Pitts Group
or Scott stipulate to the Obienus filing the FACC.

The FACC alleges
the following: The Obienus informed Pitts Group and Scott, via the purchase
agreement, that the residential property must be vacant at the time of closing.
(FACC, p. 3.) However, Scott allowed the escrow to close while the tenants were
still in possession. (Ibid.) Scott also informed the Obienus that the
property was vacant at the time of the closing of the escrow. (Ibid.) Scott
knew seller Reginald Evans had a written agreement with the tenants dated
December 12, 2019 which allowed the tenants to stay in possession for 45 days
upon payment by Mr. Evans to the tenants in the amount of $8,000.00 “which was
only 27 days.” (Ibid.) The tenants failed to vacate within 45 days of
December 12, 2019, and the Obienus had to pay the tenants an additional
$15,000.00 to vacate the premises. (Ibid.) The tenants did not vacate
the property until December of 2020 resulting in the loss of rent and the delay
of the re-habitation of the property resulting in further damage to the Obienus.

On June 17,
2024, Pitts Group filed a Declaration of Demurring Party in Support of
Automatic Extension. (Declaration of Jason Murphy, Esq. [Murphy Decl.], Exh. 3.)

On September 19,
2024, the Obienus filed a motion for leave to file a Second Amended
Cross-Complaint (SACC) to add Defendant Reginald Evans (Evans) as a
Cross-Defendant.

“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.” (Code Civ. Proc., §
473, subd. (a)(1).)

Leave to
amend is to be liberally granted at any stage in the proceedings, up to and
including trial. (Magpali v. Farmers Group, Inc. (1986) 48 Cal.App.4th
471, 487; see also County of Sanitation Dist. No. 2 of Los Angeles
County v. Kern County (2005) 127 Cal.App.4th 1544, 1618 [noting that a
plaintiff may be granted amendment even at the time of trial].) To overcome the
policy of liberally granting amendments at any stage of litigation, a defendant
must show both actual prejudice and inexcusable delay. (Magpali, supra,
48 Cal.App.4th at p. 487.) Prejudice exists where an amendment to a complaint
would result in a delay of trial; loss of critical evidence; added costs of
preparation; and increased burden of discovery. (Id. at pp. 486-488.)

Motions
for leave to amend must also meet certain procedural requirements. For
instance, California Rules of Court rule 3.1324(a) requires that the motion
“(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.”

Additionally,
rule 3.1324(b) requires that the declaration in support of a motion for leave
to file an amended complaint must state: “(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.”

The Obienus seek the court’s permission to file an amended
Cross-Complaint adding Scott as a Cross-Defendant responsible for the Obienus’
damages. The Obienus argue the court “must” allow the amendment because the
Obienus only discovered Scott’s responsibility for the Obienus’ damages during
Scott’s deposition. (Declaration of Jeff A. Mann [Mann Decl.], ¶ 3.) During the
deposition, the Obienus learned that Scott was the Pitts Group real estate
agent responsible for not disclosing the condition of the property and status
of the tenants to the Obienus. (Mann Decl., ¶ 4.) Scott is a necessary party due
to the above facts.

In opposition, Pitts Group and Scott argue the court should deny this
motion. Pitts Group and Scott note that this case has been ongoing for four
years and that the Obienus defied the Code of Civil Procedure by filing their
FACC before seeking leave of the court or a stipulation from Pitts Group and
Scott.

The court finds that the Obienus’ request for leave to amend will
prejudice Pitts Group and Scott and that the motion fails to comply with Rules
of Court. First, the motion was untimely in that the Obienus’ filed it over
four months after filing their FACC in violation of the Civil
Procedure Code—without the court’s permission and stipulation from Pitts or
Scott. Second, the amendment adds a new party and cause of action which will
require further discovery and delay both trial and the Motion for Summary Judgment
hearing set for May 1, 2025. The court notes that the Obienus do not state
their genuine ignorance of Scott’s identity or role in the alleged facts nor do
the Obienus provide specific dates on which the deposition occurred or when the
conduct giving rise to liability occurred. Finally, the motion fails comply
with the formatting requirements of Rule of Court 3.1324. (Cal. Rules of Court,
rule 3.1324(a)(1), (3) [noting the amendment must be “serially numbered to differentiate it from previous pleadings or
amendments [and] state “by page, paragraph, and line number, the additional
allegations are located”].)

Thus, because the Obienus failed to meet their burden of establishing a
factual and legal basis for leave to file a First Amended Cross-Complaint, the
court DENIES the motion for leave to amend.

[1]
The Cross-Complainants label their motion as seeking leave to file a
Cross-Complaint, but the substance of the moving papers indicates that
Cross-Complainants really seek to file and amended version of the
Cross-Complaint originally filed on September 13, 2022.

Superior Court of California

County of Los Angeles

Case No.: 20STCV26713

Superior
Court of California

County of Los Angeles

Case No.: 20STCV26713