Judge: Michael E. Whitaker, Case: 25SMCV01756, Date: 2025-06-16 Tentative Ruling

Case Number: 25SMCV01756    Hearing Date: June 16, 2025    Dept: 207

TENTATIVE RULING

MOTION

This case arises from an alleged unlawful detainer. 

On April 4, 2025, Plaintiff BH3 Malibu, LLC (“Plaintiff”) brought suit against Defendants Nelly E. Fay and Mathias T. Thomsen (“Defendants”).  Defendants answered the complaint on April 24, 2025.

Plaintiff now moves for leave to amend the complaint to convert the action into a breach of contract case, as possession is no longer at issue.  Defendants oppose the motion.

LEGAL STANDARDS – LEAVE TO AMEND

Amendments to Pleadings: General Provisions

            Under Code of Civil Procedure section 473, subdivision (a)(1), “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.”

            To wit, without notice to the other party the Court has wide discretion to allow either party (i) to add or strike the name of a party or (ii) to correct a mistake in the name of a party or a mistake in any other respect “in furtherance of justice” and “on any terms as may be proper.” (See Code Civ. Proc., § 473, subd. (a)(1); see also Marriage of Liss (1992) 10 Cal.App.4th 1426, 1429.) Alternatively, after notice to the other party, the Court has wide discretion to allow either party to amend pleadings “upon any terms as may be just.” (See Code Civ. Proc., § 473, subd. (a)(1). Similarly, Code of Civil Procedure section 576 states “Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.”

            Judicial policy favors resolution of all disputed matters between the parties and, therefore, leave to amend is liberally granted. (Berman vs. Bromberg (1986) 56 Cal.App.4th 936, 945; Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 488-489 [this has been an established policy in California since 1901] (citing Frost v. Whitter (1901) 132 Cal. 421, 424; Thomas v. Bruza (1957) 151 Cal.App.2d 150, 155).) The Court of Appeal in Morgan v. Superior Court held “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, it is not only error but an abuse of discretion.” (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530, citations omitted.) Moreover, “it is an abuse of discretion for the court to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048 [opposing party did not establish harm by the delay in moving to amend the complaint].)

            “The court may grant leave to amend the pleadings at any stage of the action.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2024) ¶ 6:636 (hereafter Weil & Brown).) Denial of a motion to amend is rarely justified if the motion is timely made and granting the motion will not prejudice the opposing party. (Id. at ¶ 6:639, citations omitted.) However, if the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the judge has discretion to deny leave to amend. (Id. at ¶ 6:655, citations omitted. Absent prejudice, any claimed delay alone is not grounds for denial. “If the delay in seeking the amendment has not misled or prejudiced the other side, the liberal policy of allowing amendments prevails. Indeed, it is an abuse of discretion to deny leave in such a case even if sought as late as the time of trial. (Id. at ¶ 6:653 (citing Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565).) “Prejudice exists where the amendment would result in a delay of trial, along with loss of critical evidence, added costs of preparation, increased burden of discovery, etc. . . . But the fact that the amendment involves a change in legal theory which would make admissible evidence damaging to the opposing party is not the kind of prejudice the court will consider.” (Weil & Brown, supra, at ¶ 6:656, citations omitted.)

            “Even if some prejudice is shown, the judge may still permit the amendment but impose conditions, as the Court is authorized to grant leave ‘on such terms as may be proper.’” (Weil & Brown, supra, at ¶ 6:663, citation omitted.) For example, the court may cause the party seeking the amendment to pay the costs and fees incurred in preparing for trial. (Id. at ¶ 6:664 (citing Fuller v. Vista Del Arroyo Hotel, 42 Cal.App.2d 400, 404).)

California Rules of Court, rule 3.1324: Procedural Requirements

            Pursuant to California Rules of Court, rule 3.1324(a), a motion to amend a pleading before trial must:

“(1) Include a copy of the proposed amendment or amended pleadings, 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.”

            In addition, under Rule 3.1324(b), a motion to amend a pleading before trial must be accompanied by a separate declaration that specifies the following:

“(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.”

ANALYSIS

            In support of the request, Plaintiff advances the Declaration of Terence P. Carney, which provides as follows:

3. Plaintiff filed the original complaint in this matter on April 4, 2025 as a residential unlawful detainer action seeking possession of the premises located at 6489 Cavalleri Road, #313, Malibu, California 90265, along with damages for unpaid rent, attorneys fees, and other charges.

4. As possession is no longer an issue, I drafted a proposed First Amended Complaint that seeks to convert the original unlawful detainer action into a breach of contract action and incorporates claims for damages resulting from Defendants' breach of the lease agreement. Attached hereto as Exhibit "A" is a true and correct copy of the First Amended Complaint ("FAC"), in compliance with California Rules of Court, Rule 18 3.1324(a).

5. On May 5, 2025, I drafted and sent a meet-and-confer letter and proposed stipulation by U.S. mail and email to Defendants, requesting their agreement to allow the filing of the proposed FAC. Attached hereto as Exhibit "B" is a true and correct copy of the May 5, 2025 letter with attached stipulation.

6. As of the date of this motion, Defendants have not signed and returned the stipulation or otherwise responded to Plaintiffs request for consent to amend the complaint.

7. The proposed FAC clearly identifies the additions and deletions to the original complaint. It does not raise any entirely new allegations, nor does it prejudice Defendants, who have been on notice of Plaintiffs intent to assert breach of contract claims arising from the same transaction.

8. This motion is brought in good faith, without unnecessary delay, and in the interest of judicial economy.

(Carney Decl. ¶¶ 3-8.) 

            Attached to the Carney Declaration is a copy of the proposed First Amended Complaint (“FAC.”)  Although Plaintiff does not detail the proposed additions and deletions by page and line number, the Court notes that the initial Complaint is a Form UD-100 unlawful detainer complaint, and the proposed FAC is a short, 3-page breach of contract complaint.  As such, the Court can adequately review the proposed changes and finds that Plaintiff has substantially complied with this requirement.

            The Carney Declaration also does not specify exactly when Defendants vacated the premises, but it is clear that they had done so as of counsel’s May 5, 2025 letter to Defendants, which was one month after the initial Complaint was filed.  Thus, the Court can deduce from the declaration provided that Defendants vacated the premises sometime between April 4 when the Complaint was filed and May 5.  Further, the Court notes that the proposed amendment is necessary and proper to convert the unlawful detainer action into a breach of contract action, in light of the fact that possession is no longer at issue.

            As such, the Court finds the motion substantially complies with all requirements.

            In opposition, Defendants argue that (1) the original UD complaint was jurisdictionally defective when filed and cannot be cured by amendment; (2) the motion fails to comply with the procedural requirements of Code of Civil Procedure section 1005, subdivision (b) and California Rules of Court, rule 3.1324; (3) the proposed amendment introduces new and substantially different issues and a new cause of action; (4) Plaintiff unduly delayed in seeking leave to amend; and (5) the proposed amendment would substantially prejudice Defendants.

            Specifically, Defendants contend that their lease had expired in October 2024, and therefore there was no formal tenancy at the time the UD complaint was filed, and possession was not in dispute at the time the original complaint was filed, because they had contacted Plaintiff on April 3 to try to coordinate a move-out process.

But instead of responding, Plaintiff filed the instant action on April 4, 2025, and Defendants did not receive service of the original Complaint until April 10, at which point they had already vacated the premises.  Plaintiff’s counsel acknowledged as early as April 16 that possession was not at issue.  Yet, Plaintiff’s counsel did not seek to amend the Complaint before Defendants’ April 24 Answer deadline.

            As for Defendants’ first argument that the UD complaint was jurisdictionally defective when filed, the Court does not find that the expiration of Defendants’ written lease agreement in October 2024 or Defendants’ attempts to coordinate a move-out process on April 3 demonstrate that the UD action was jurisdictionally deficient when filed. 

Defendants also point to Exhibit B, a March 25 email they contend demonstrates that possession was not at issue as of March 25, before Plaintiff filed the UD complaint on April 4.  However, a careful reading of that exhibit demonstrates that Defendants’ departure is still only planned or speculative as of March 25.  (Ex. B [“your decision to leave will settle the issue of physical occupancy/possession”].)  Indeed, Defendants’ own Exhibit D indicates Defendants did not begin moving out until April 7, and were not completely moved out until April 11.  Thus, on April 4, when the action was filed, Defendants were still admittedly in possession of the premises.  Moreover, even if the UD action were jurisdictionally deficient, such issues are moot, as Plaintiff no longer seeks to pursue a summary unlawful detainer proceeding. Alternatively, Plaintiff attempts to convert this action into a civil action for breach of contract.

            Defendants next argue the motion fails to comply with Code of Civil Procedure section 1005.  The motion was filed and served by mail on May 20, 2025, and the hearing scheduled for June 16, 2025, which is less than the sixteen court days required by section 1005, plus the five calendar days for service by mail required by Code of Civil Procedure section 1013. 

Code of Civil Procedure section 1005 provides, “Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing. […]  However, if the notice is served by mail, the required 16-day period of notice before the hearing shall be increased by five calendar days if the place of mailing and the place of address are within the State of California [….]” 

Here, sixteen court days after May 20, 2025 is June 12, and five calendar days thereafter is June 17, yet the hearing is scheduled for June 16. Although several provisions permit shorter scheduling timelines for certain motions (see, e.g. Code of Civil Procedure section 1167.4 [three to seven days for motions to quash service of summons, stay, or dismiss]; section 1170 [five to seven days for demurrers or motions to strike]), Plaintiff has not provided any authority for shortening the time on a motion for leave to amend to convert the action to an ordinary civil breach of contract action. 

Notwithstanding, Defendants still timely filed a comprehensive and substantive opposition brief.  As such, it does not appear that Defendants were prejudiced by being short-changed by one day.  Under the circumstances, the Court does not find that the interests of justice and judicial economy are best served by continuing the hearing by a day and requiring all parties to return to appear at the hearing for a second day.

Defendants next argue that converting the summary UD proceeding into a civil action is improper, but does not cite to any authority supporting this proposition.  Indeed, past-due rent and holdover damages are commonly aspects of UD proceedings, and the summary nature of UD proceedings will no longer apply once the action is converted to a civil action. 

Defendants further argue that the proposed amended complaint expands Defendants’ potential liability to include months of rent they purportedly owned under the lease to the prior owner.  The Court disagrees; the proposed FAC seeks rent from October 2024 onward, when Defendants concede the prior lease expired.

The Court is further unpersuaded that Plaintiff’s delay in moving to convert the action from April 11, when Defendants completely moved out, to May 20, when Defendants filed the instant motion, constitutes an unreasonable delay, notwithstanding that Defendants were forced to file an answer to the original complaint in the interim.

As for prejudice, Defendants argue (1) they will suffer reputational harm from the UD designation on the public docket; (2) Defendants are precluded the “clean slate” of asserting offsets and counterclaims they would be able to assert anew in a fresh case; (3) Defendants would not need to be served with a fresh summons; and (4) Plaintiff’s conduct constitutes a tactical misuse of the unlawful detainer process.

Taking each argument in turn; (1) the action would be converted to an ordinary civil breach of contract action on the public docket; (2) Defendants may either answer the FAC anew, asserting their offsets and counterclaims, or may seek leave to amend their existing answer to assert the requested offsets and counterclaims; (3) the Court does not see how a fresh summons is necessary or the lack of receiving one would prejudice Defendants; and (4) as discussed above, because Defendants were still in possession of the property when the original complaint was filed, it was not improper for Plaintiff to file the unlawful detainer complaint.  As such, the Court does not find that Plaintiffs have demonstrated prejudice.

CONCLUSION AND ORDER

            Therefore, having found Plaintiff’s request substantially complies with both the procedural and substantive requirements, and that Defendants have not demonstrated otherwise in opposition, the Court grants Plaintiff’s motion for leave to amend the Complaint. 

The Court orders Plaintiff to file and serve the proposed First Amended Complaint on or before June 30, 2025.

            Plaintiff shall provide notice of the Court’s order and file the notice with a proof of service forthwith.

DATED:  June 16, 2025                                 ___________________________

                                                                  Michael E. Whitaker

                                                                  Judge of the Superior Court