Judge: Melvin D. Sandvig, Case: 21CHCV00940, Date: 2023-04-03 Tentative Ruling

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Case Number: 21CHCV00940    Hearing Date: April 3, 2023    Dept: F47

Dept. F47

Date: 4/3/23

Case #21CHCV00940

MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT

Motion filed on 2/7/23. 

MOVING PARTY: Plaintiff Lawrence A. Garoutte

RESPONDING PARTY: Defendant Mary Annette Pickens

NOTICE: ok

RELIEF REQUESTED: An order granting Plaintiff leave to file a First Amended Complaint.

RULING: The motion is denied without prejudice.    

This action arises out of a loan agreement between Plaintiff Lawrence A. Garoutte (Plaintiff) and Defendant Mary Annette Pickens (Defendant), Plaintiff’s step-mother.  On 12/9/21, Plaintiff filed his complaint against Defendant for: (1) Cancellation of Deed, (2) Quiet Title, (3) Recovery of Usurious Interest and (4) Declaratory Relief.  On 10/19/22, this Court granted Defendant’s motion to strike portions of the complaint regarding special damages, punitive damages and attorney fees and granted Plaintiff 20 days leave to amend.  (See 10/19/22 Minute Order).  On 11/1/22, Plaintiff filed a document titled “Notice of Non-Amendment of Complaint In Respose [sic] to Order Granting Motion to Strike” which indicated that Plaintiff opted not to amend his complaint and to the extent Plaintiff later sought to amend, Plaintiff would file a Motion for Leave to Amend.  (See  11/1/22 Notice of Non-Amendment). 

On 2/7/23, Plaintiff filed and served the instant motion seeking an order granting Plaintiff leave to file a First Amended Complaint which includes three new causes of action for breach of contract, conversion and violation of Civil Code 1983.  On 3/27/23, after Plaintiff filed and served a Notice of Non-Opposition to the Motion, Defendant filed and served an opposition 5 days late.  See CCP 1005(b).  Additionally, the opposition was served by regular mail in violation of CCP 1005(c).  No explanation for the late filing and service are provided in the opposition.

Without considering the late opposition, the Court finds that Plaintiff has failed to meet the requirements for a motion for leave to amend.  See CRC 3.1300(d).  As such, the Court finds no need to continue the hearing to allow Plaintiff to file and serve a reply to the opposition.    

CRC 3.1324 provides, in relevant part:

“(a) Contents of motion

A motion to amend a pleading before trial must:

(1) Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments;

(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.

(b) Supporting declaration

A separate declaration must accompany the motion and 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.”

While the motion indicates that Plaintiff seeks to add three new causes of action, it fails to state that Plaintiff also seeks to eliminate his causes of action for cancellation of deed and quiet title.  (See Motion, p.3:4-6).  The Court had to review the Complaint and proposed First Amended Complaint to make this determination.  (See Motion, Ex.A and B).  Additionally, the declaration submitted in support of the declaration does not include any of the information required by CRC 3.1324(b).  Further, Plaintiff’s counsel has failed to bookmark the declaration, exhibits and proof of service attached to the complaint as required.  See CRC 3.1110(f)(4); 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil. 

Counsel for both parties are admonished to comply with all court rules and filing deadlines for future filings.  Failure to do so may result in papers not being considered, matters being continued and/or the imposition of sanctions.