Judge: Mel Red Recana, Case: 23STCV08240, Date: 2024-08-02 Tentative Ruling

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

Case Number: 23STCV08240    Hearing Date: August 2, 2024    Dept: 45

Superior Court of California

County of Los Angeles

Hearing date:  August 2, 2024

Moving Party:  Plaintiff Judith Mendez

Responding Party:  Defendants Byoll LLC, Rick Roussin, and IPTC, LLC

Motion for Leave to Amend            

The Court considered the moving papers, opposition, and reply.

            The motion is DENIED WITHOUT PREJUDICE.

Background

            On April 13, 2023, Plaintiff filed a complaint against Defendants including the following causes of action: (1) Breach of Contract; (2) Breach of the Implied Covenant of Good Faith And Fair Dealing; (3) Declaratory Relief; (4) Intentional Misrepresentation (5) Concealment; (6) Fraudulent Foreclosure; and (7) Violation of Business and Professions Code Section 17200. (Declaration of Zachary D. Schorr, [“ZDS Dec.”], ¶3.) One day later on April 14, 2023, Plaintiff filed a first amended complaint (“FAC”). (ZDS Dec. ¶ 4.) On November 1, 2023, Plaintiff filed a chapter 13 petition for bankruptcy. (ZDS Dec., ¶ 5.) On April 9, 2024, the bankruptcy court dismissed Plaintiff’s bankruptcy. (ZDS Dec., ¶ 5.)

            On April 11, 2024, Defendants BYOLL, LLC, RICK ROUSSIN, and IPTC, LLC, filed their first demurrer to Plaintiff’s Complaint and is set to be heard on February 25, 2025.

            On May 17, 2024, Plaintiff filed the instant motion. On July 10, 2024, Defendants filed their opposition. On July 24, 2024, Plaintiff filed a reply.

Legal Standard

“A court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading.”  (Code Civ. Proc., § 473, subd. (a)(1).)  Such amendment may occur “at any time before or after commencement of trial.”  (Code Civ. Proc., § 576.)  The court’s discretion will usually be exercised liberally to permit amendments of the pleadings.  (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 939.)¿ “A motion to amend a pleading before trial must . . . [s]tate 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 [s]tate 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.”¿ (Cal. Rules of Court, rule 3.1324(a).)¿ The declaration must also specify the amendment’s effect, why it is necessary and proper, when the facts supporting the amended allegations were discovered, and why the request was not made earlier.¿ (Cal. Rules of Court, rule 3.1324(b).)¿

If the party seeking the amendment has needlessly delayed, and the delay has prejudiced the opposing party, the court has the discretion to deny leave to amend.¿ (See Hirsa v. Super. Ct. (1981) 118 Cal.App.3d 486, 490.)¿ Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, or added costs of preparation.¿ (Solit v. Tokai Bank, Ltd. New York Branch (1999) 68 Cal.App.4th 1435, 1448.)¿¿ ¿ 

Discussion

            Merits

            Plaintiff requests leave to amend the First Amended Complaint based on new facts that have come to light during the litigation process. (Mot. at p. 4.) Defendants argue that Plaintiff’s motion is procedurally defective because Plaintiff failed to comply with Cal. Rules of Ct., Rule 3.1324 (a) and (b). (Opp. at pp. 3-4.) Moreover, Defendants argue that Plaintiff’s delay in bringing this motion is inexcusable and prejudices Defendants because Plaintiff brought this motion more than one year after filing her Complaint and First Amended Complaint. (Id. at p. 5.) Defendants further argue that they will be prejudiced if this Court grants Plaintiff’s motion for leave to amend her FAC. Granting Plaintiff leave to amend will delay the trial, add costs of preparation in this matter, and require additional discovery. (Id. at p.7.) Additionally, Defendants request that if this Court were inclined to grant Plaintiff’s motion, then it should condition the granting on compensating Defendants for having to incur additional costs to complete additional discovery and file a new demurrer as well as the congoing carrying costs for the Property. (Id. at p. 9.) Defendants further request that the Court should further require Plaintiff to repay Defendants for the entire outstanding loan balance up to the day to trial. (Id.)

            The Court finds the motion is procedurally defective for various reasons. For instance, Plaintiff’s motion fails to “[s]tate 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 [s]tate 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.”¿(Cal. Rules of Court, rule 3.1324(a).) Moreover, Plaintiffs’ counsel’s declaration fails to state when the facts supporting the amended allegations were discovered, and why the request was not made earlier.¿(Cal. Rules of Court, rule 3.1324(b).)¿Plaintiff further failed to “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.” Plaintiff attempts to remediate these deficiencies in her reply; however, these are new arguments were brought in the reply which is improper. Plaintiff’s reliance on Honig v. Financial Corp. of America is misguided.

            Therefore, the Court DENIES the Motion for Leave to Amend WITHOUT PREJUDICE.

            It is so ordered.

Dated: August 2, 2024

_______________________

MEL RED RECANA

Judge of the Superior Court