Judge: Michael E. Whitaker, Case: SC125546, Date: 2024-05-16 Tentative Ruling

Case Number: SC125546    Hearing Date: May 16, 2024    Dept: 207

TENTATIVE RULING

BACKGROUND

This case arises from a neighbor dispute.  On March 14, 2016, Plaintiffs and Cross-Defendants Hilburn Covington and Diane Covington, individually and as co-trustees of the Hilburn Covington Faily Trust, U/T/I dated September 27, 2012 (“Cross-Defendants”) filed suit against Defendants and Cross-Complainants Scott Miller and Melissa Miller (“Cross-Complainants”) for View Restoration.  On April 14, 2016, Cross-Defendant Melissa Miller filed a Notice of Petition for Relief under Chapter 11 of the United States Bankruptcy Code, 11 U.S.C. § 101 and Imposition of Automatic Stay, indicating that she had filed a bankruptcy petition on August 11, 2010, effectively staying the instant action.  At a status conference on January 31, 2023, counsel informed the Court that the Relief from the Automatic Stay was signed and filed on December 6, 2022.

On March 17, 2023, Cross-Complainants filed a Cross-Complaint against Cross-Defendants for (1) Nuisance; (2) Trespass; and (3) Negligence, alleging that improper drainage on Cross-Defendants’ property is causing water to intrude onto Cross-Complainants’ property.

Cross-Complainants now move for leave to amend the Cross-Complaint to add as cross-defendants their neighbors to the north, after recently discovering that improper drainage from that neighbor’s property was also contributing to the problem.

The motion is unopposed.

LEGAL STANDARD

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 2023) ¶ 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.”

DISCUSSION

            In support of the motion, Cross-Complainants have included a redlined version of the proposed first amended cross-complaint, showing all the changes from the initial cross-complaint.  Cross-Complainants have also provided the Declaration of Alec P. Schulman, indicating:

d. The Effect of the Amendment (Rule 3.1324(b)(1)): The effect of the amendment is to add the Hoppers to all three Causes of Action already alleged in the Cross Complaint. Adding the Hoppers will ensure complete relief for the Millers as the Hoppers’ negligent conduct was a contributory cause of the damages already alleged against the Covingtons.

e. Why the Amendment is Necessary and Proper (Rule 3.1324(b)(2)): The Millers allege that the water from the Covington Property and the Hopper Property has combined and intruded onto the Miller Property causing immense damage. This damage includes, but is limited to slope instability, a slide, soil erosion, a foul smell, damage to the Miller’s sprinklers and significant landscaping issues. The Millers’ addition of the Hoppers to this action is essential to ensure that there is not an integral party missing from this action and that the Millers may receive complete relief following this single action’s conclusion.

f. When the Facts Giving Rise to the Amendment were Discovered (Rule 3.1324(b)(3)): The Millers discovered the facts supporting the addition of the Hoppers to this action following the completion of recent construction efforts and the heavy rainfall in the Southern California area. Following the extreme weather, it was revealed that various construction improvements performed by the Hoppers have contributed to the damages allegedly created by Covingtons. The Millers consulted with their attorneys concerning how best to move forward and after a short period of time, decided to add the Hoppers to this action.

g. Reasons Why the Request for Amendment was not Made Earlier (Rule 3.1324(b)(4)): As the Court knows, the Miller Property has been subject to various construction projects that have hindered the Miller’s ability to assess the particular cause of damage that has been done. Following substantial completion of the work done on the property, and the recent heavy rains, it was revealed that the Hoppers’ poor maintenance of their property resulted in substantial water flow that has combined with the water flow emanating from the Covington Property which has resulted in the damages alleged in the Cross-Complaint.

(Schulman Decl. ¶ 2.)

            Therefore, Cross-Complainants’ motion is both procedurally and substantively proper.

CONCLUSION AND ORDER

            Therefore, the Court grants Cross-Complainants’ unopposed Motion for Leave to Amend the Cross-Complaint. 

            Cross-Complainants shall file and serve the proposed first amended cross-complaint on or before June 7, 2024.  Further, Cross-Complainants shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith. 

DATED:  May 16, 2024                                 ___________________________

                                                                  Michael E. Whitaker

                                                                  Judge of the Superior Court