Judge: Peter A. Hernandez, Case: 21PSCV00469, Date: 2023-11-01 Tentative Ruling
Case Number: 21PSCV00469 Hearing Date: November 1, 2023 Dept: K
Plaintiff Gonzalo Tovar Hernandez’s unopposed
Motion for Leave to File Second Amended
Complaint is GRANTED.
Background
Plaintiff Gonzalo Tovar Hernandez (“Plaintiff”) alleges as follows: In 1999, Plaintiff, Manuel
Ramirez
(“Manuel”), Delores Ramirez (“Delores”) and Maria Tovar (“Maria”) purchased the
property
located at 790 Elliott Ct. #A, Pomona, CA 91766 (“subject property”). In 2002,
Plaintiff
and Manuel
refinanced the subject property. In 2003, Delores died and an Affidavit of
Joint
Death was
recorded. In 2004, Plaintiff and Manuel refinanced the subject property. In
2007,
Plaintiff,
Manuel and Maria granted the subject property to Plaintiff as his sole and
separate
property. In
2008, Plaintiff granted the subject property to himself and Manuel, as tenants
in
common. In
2008, Manuel stated that upon his death he intended to give his interest in the
subject
property to his goddaughter, Defendant Myra Sanchez (“Sanchez”). In 2009,
Manuel
recorded a deed
without Plaintiff’s knowledge, wherein he purported to grant the subject
property to
himself and Sanchez, as tenants in common. Manuel died on April 15, 2009.
Sanchez
moved onto the
subject property after Manuel’s death. In or about June 2018, Sanchez stopped
paying her ½
share of the mortgage and her share of utilities costs for the subject
property.
On September 8, 2021, Plaintiff filed a First Amended Complaint, asserting causes of action
against
Sanchez, All persons unknown, claiming any legal or equitable right, title,
estate, lien, or
interest in the
property described in the complaint adverse to Plaintiff’s title, or any cloud
upon
Plaintiff’s
title thereto (“All Persons”) and Does 1-50 for:
1.
Quiet Title
2.
Declaratory Relief
A Case Management Conference is set for November 1, 2023.
“The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading…” (Code Civ. Proc., § 473, subd. (a)(1); and see § 576 [“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”].)
“[T]he trial court has wide discretion in allowing the amendment of any pleading.” (Bedolla v. Logan & Frazer (1975) 52 Cal.App.3d 118, 135.) “[I]t is irrelevant that new legal theories are introduced as long as the proposed amendments relate to the same general set of facts.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048 [quotation marks and citation omitted].) “[E]ven if the proposed legal theory is a novel one, the preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings.” (Id. [quotation marks and citation omitted].) With that said, “the failure of a proposed amendment to state facts sufficient to constitute a cause of action or defense may support an order denying a motion to amend.” (California Casualty Gen. Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 280, disapproved of on other grounds in Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390)
Courts must apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial, when no prejudice is shown to the adverse party. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) However, “even if a good amendment is proposed in proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial. . . denial may rest upon the element of lack of diligence in offering the amendment after knowledge of the facts, or the effect of the delay on the adverse party.” (Roemer v. Retail Credit Co. (1975) 44 Cal.App.3d 926, 940.)
Also, “[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.” (Cal. Rules of Court (“CRC”), rule 3.1324, subd. (a).)
Additionally, “[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.” (CRC Rule 3.1324, subd. (b).)
Discussion
Plaintiff moves the court for an order granting him leave to file a Second Amended Complaint (“SAC”).
The motion reflects non-compliance with CRC Rule 3.1324, subdivisions (a)(2) and (3) and (b)(2)-94); however, the motion is unopposed. Plaintiff’s counsel Shazad Z. Omar (“Omar”) represents that the proposed SAC seeks to add the Estate of Manuel Ramirez in as a defendant, to change his quiet title cause of action to one of partition and to add a cause of action for accounting. (Omar Decl., ¶ 7).
The motion is granted.