Superior Court of California 

County of Los Angeles 

Department 78 

¿ 

 

I. BACKGROUND & PROCEDURAL HISTORY 

On January 5, 2023, plaintiffs John Byrum and Julie Byrum (collectively, "Plaintiffs") filed this breach of contract action against defendants Expert Home Builders, Inc. (“EHB”) and Does 1 through 50 (collectively, “Defendants”). The complaint alleges that EHB entered into a contract on March 23, 2022, in which EHB agreed to remove existing prefabricated pool, plaster the pool, and install new pool tile in exchange for Plaintiffs’ payment of $22,000. EHB’s representatives made false representations to induce Plaintiffs to sign change orders resulting in price increases, and there were numerous problems with the work, including damage to Plaintiffs’ property. The complaint sets forth six causes of action for (1) breach of contract, (2) breach of covenant of good faith and fair dealing, (3) fraudulent inducement, (4) unlawful, unfair and fraudulent business practices, (5) nuisance, and (6) quasi contract/ unjust enrichment. 

On August 2, 2023, Plaintiffs filed their First Amended Complaint against Defendants, setting forth seven causes of action for (1) breach of contract, (2) breach of covenant of good faith and fair dealing, (3) fraudulent inducement, (4) unlawful, unfair and fraudulent business practices, (5) nuisance, (6) quasi contract/ unjust enrichment, and (7) negligence. 

On August 9, 2023, EHB filed its Answer to the Complaint. 

On June 6, 2024, Plaintiffs filed the instant motion for leave to file a “First Amended Complaint” to add David Porat (“Porat”), owner of EHB, as a defendant to this action. The Court notes that a First Amended Complaint had already been filed on August 2, 2023, and the Court will therefore refer to this motion as actually seeking leave to file a Second Amended Complaint (“SAC”). Plaintiffs argue that the learned that Porat was the owner of EHB on March 27, 2024, after the parties engaged in an informal discovery conference, and that there will be no prejudice to EHB by the amendment. 

On August 12, 2024, EHB filed its opposition to the motion, arguing that Plaintiffs seek leave to amend on the eve of trial, and failed to attach a proposed copy of the SAC. EHB argues that by failing to attach the proposed amendment, the allegations based on “agency law” and “the alter ego doctrine” are futile. EHB further contends that Plaintiffs unduly delayed in seeking leave to amend, and that Porat’s identity as the owner of EHB was available with a Google Search of EHB. Lastly, EHB argues it will be prejudiced because it will allow Plaintiffs to serve additional discovery and to take depositions, when EHB is ready for trial. 

On August 16, 2024, Plaintiffs filed their reply and attaching the proposed SAC and amended declaration of Nathan Mubasher. Plaintiffs argue that any argument that the proposed amendments are futile is better reserved on a demurrer. Plaintiffs reiterate that they did not delay in bringing the motion because they only discovered the identity of Porat on March 27, 2024. 

 

II. LEGAL STANDARD 

CCP § 473(a)(1) provides, in relevant part:¿ “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.” 

Under CRC Rule 3.1324(a), a motion to amend a pleading shall (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. Under CRC Rule 3.1324(b), 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. 

Even if a good amendment is proposed in proper form, a long, unwarranted and unexcused delay in presenting it may be a good reason for denial.¿ In most cases, the factors for timeliness are: (1) lack of diligence in discovering the facts or in offering the amendment after knowledge of them; and (2) the effect of the delay on the adverse party.¿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.¿(Hirsa v. Superior Court (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 such as an increased burden of discovery. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488.)¿ 

 

III. DISCUSSION 

Here, the owner of EHB is a matter of public record. Although Plaintiffs could have discovered Porat’s identity sooner, instead of relying solely on EHB’s discovery responses or affirmations, the Court nonetheless finds no reason to deny Plaintiffs leave to file a SAC to add Porat, notwithstanding the procedural deficiency of initially failing to attach the proposed SAC to the moving papers. The redlined proposed SAC has been provided with the Reply. (Reply, Exh. A.) 

“This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.”¿(Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047.)¿Ordinarily, the court will not consider the validity of the proposed amended pleading in ruling on a motion for leave since grounds for a demurrer or motion to strike are premature.¿The court, however, does have discretion to deny leave to amend where a proposed amendment fails to state a valid cause of action as a matter of law and the defect cannot be cured by further amendment.¿(See California Casualty General Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 281, overruled on other grounds by Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390.)  

The Court cannot say that the addition of Porat, as the owner of EHB, is invalid as a matter of law to deny leave to amend. Further, the Court finds no prejudice in allowing the amendment. Although the current trial date of September 30, 2024 will likely be disturbed by the need for additional discovery, EHB’s general contention that it will be prejudiced because of the additional discovery is unavailing. EHB does not specify what discovery has already been done, and what discovery is anticipated to be tacked on that would be so prejudicial. Further, there is no evidence that the proposed addition is an attempt to “drag the process out to harass Defendant.” (Opp. 4:1-2.) Additionally, the Court notes that this case matter is still not old. The action was filed on January 5, 2023. There is ample time yet to complete all discovery prior to this action being brought to trial. (CCP § 583.310.) Under the totality of the circumstances, and the liberal policy in favor of amendments, Plaintiffs’ motion for leave to file a SAC to add Porat to the action is therefore granted. 

 

IV. CONCLUSION 

Based on the foregoing, Plaintiffs’ motion for leave to file a SAC is GRANTED. Plaintiffs are ordered to file a separate copy of the proposed SAC within ten (10) days of the date of this Order. 

 

Moving Party is ordered to give notice. 

 

DATED: August 22, 2024 

__________________________ 

Hon. Michelle C. Kim 

Judge of the Superior Court 

 

PLEASE TAKE NOTICE: 

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. 

• If a party intends to submit on this tentative ruling, the party must send an email to the court at SMCDEPT78@lacourt.org with the Subject line “SUBMIT” followed by the case number. The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting. 

• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue. 

• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.