Judge: Paul A. Bacigalupo, Case: 19TRCV00625, Date: 2022-10-18 Tentative Ruling

Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff before the set hearing time. See, e.g., CRC Rule 324(b).

Case Number: 19TRCV00625    Hearing Date: October 18, 2022    Dept: B

PROCEEDINGS

Sylvia Garten v. Frank James Corbett, et al.  

19TRCV00625

1. Sylvia Garten’s Motion for Leave to Amend Complaint to Conform to Proof

TENTATIVE RULING

            Sylvia Garten’s Motion for Leave to Amend Complaint to Conform to Proof is denied without prejudice.

            Background

            Plaintiff filed the Complaint on July 23, 2019. Plaintiff alleges the following facts: Plaintiff is the owner of real property located at 209 Camino De Las Colinas, Redondo Beach, Los Angeles County, California, which is legally described as follows: 7514002020, 209 Camino De Las Colinas, Torrance, Tract #10300 Lot 32 Blk H. Defendants are the owners of other real property commonly known as 213 Camino, De Las Colinas, Redondo Beach, Los Angeles 5 County, California, which property is adjacent to Plaintiff’s property, and which is legally described as follows: 7514002019, 213 Camino De Las Colinas, Torrance, Tract#10300 Lot 31 Blk H. Defendants have engaged in improper, non-authorized, and non-permitted construction on their property which has caused a nuisance to Plaintiff. Plaintiff alleged a single cause of action for Nuisance.

            Motion for Leave to Amend

            The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading.  Code Civ. Proc., §§ 473 & 576.  Judicial policy favors resolution of all disputed matters between the parties and, therefore, leave to amend is generally liberally granted.  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.  However, the court 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.   Cal. Casualty General Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 281.

            The application for leave to amend should be made as soon as the need to amend is discovered.  The closer the trial date, the stronger the showing required for leave to amend.  If the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the court has the 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.

            Pursuant to Cal. Rules of Court, Rule 3.1324(a): A motion for leave to amend 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.”

            Cal. Rules of Court, Rule 3.1324(b) also requires that the moving party must submit a separate declaration specifying:

            “(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.”

            Plaintiff moves for leave to amend to add a cause of action for Trespass.  

            Plaintiff failed to adequately comply with Rule 3.1324(a). Plaintiff provided a “red-line” version of the First Amended Complaint by which one can glean the allegations to be added or deleted by page, paragraph, and line number.

            Plaintiff provided a declaration setting forth the effect of the amendment and why the amendment is necessary and proper. (Decl., Stephen B. Goldberg, ¶ 3). However, the declaration did not specify when the facts giving rise to the amendment were first discovered, and the reasons why the request for amendment was not made earlier.

            Therefore, Plaintiff’s Motion for Leave to File Amended Complaint is denied without prejudice.

            Defendant is ordered to give notice of this ruling.