Judge: Peter A. Hernandez, Case: 24STCV03855, Date: 2025-01-27 Tentative Ruling
Case Number: 24STCV03855 Hearing Date: January 27, 2025 Dept: 34
1.
Defendants Jose L. Andrade, Norma Andrade, and Laura V. Andrade’s
Demurrer to Plaintiffs’ Complaint is SUSTAINED in part and OVERRULED in part.
2.
Defendants Jose L. Andrade, Norma Andrade, and Laura V. Andrade’s Motion
to Strike Plaintiffs’ Claim for Punitive Damages is DENIED.
The court will inquire at the hearing whether leave to amend should be
granted.
Background
On February 15, 2024, Plaintiffs Sharon Medrano and Rudy
Stovall (“Plaintiffs”) filed this action against Defendants Jose L. Andrade,
Norma Andrade, Laura V. Andrade, Kevin A. Hernandez, Angel Hernandez, Maison
Properties LLC, Mark Thomas Duboise, and Does 1-100 (“Defendants”) based on Plaintiffs’
tenancy at a property located at 7934 Newlin Avenue, Whittier, CA 90602
(“Subject Property”) alleging causes of action for:
1.
Failure to Comply with the Tenant
Protection Act of 2019 in Violation of California Civil Code § 1947.12;
2.
Breach of Warranty of Habitability
(Violation of Civil Code § 1941.1);
3.
Breach of Warranty of Habitability
(Health & Safety Code § 17920.3);
4.
Negligence – Premises Liability;
5.
Nuisance;
6.
Intentional Infliction of Emotional
Distress;
7.
Breach of Contract;
8.
Breach of Covenant of Quiet Enjoyment;
9.
Fraud/Deceit/Intentional
Misrepresentation; and
10. Negligent
Misrepresentation.
On April 24,
2024, Defendant Mark Thomas Duboise filed an answer to Plaintiffs’ complaint.
On May 24,
2024, Defendants Kevin A. Hernandez, Angel Hernandez, and Maison Properties LLC
filed an answer to Plaintiffs’ complaint.
On August 9,
2024, Defendants Jose L. Andrade, Norma Andrade, and Laura V. Andrade (“Moving Defendants”) filed this Demurrer
to Plaintiffs’ complaint and Motion to Strike Plaintiffs’ claim for punitive
damages. On November 27, 2024, Plaintiffs filed oppositions. On November 20,
2024, Moving Defendants filed replies.
1.
Demurrer
Legal Standard
“The
party against whom a complaint or cross-complaint has been filed may object, by
demurrer or answer as provided in Section 430.30, to the pleading on any one or
more of” various grounds listed in statute. (Code Civ. Proc., § 430.10.)
When considering demurrers, courts
read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent
on the face of the pleading or via proper judicial notice. (Donabedian
v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer
tests the pleading alone, and not the evidence or facts alleged.” (E-Fab,
Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.)
As such, the court assumes the truth of the complaint’s properly pleaded or
implied factual allegations. (Ibid.) The only issue a demurrer is
concerned with is whether the complaint, as it stands, states a cause of
action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)
Where
a demurrer is sustained, leave to amend must be allowed where there is a
reasonable possibility of successful amendment. (Goodman v. Kennedy
(1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court
that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC
(2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable
possibility that the plaintiff can state a good cause of action, it is error to
sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation
Dist. (1969) 70 Cal.2d 240, 245).
Discussion
Moving Defendants demur, pursuant to
Code of Civil Procedure section 430.10, subdivisions (e) and (f) to all ten causes
of action in Plaintiffs’ complaint, on the basis that Plaintiffs fail to state
facts sufficient to constitute causes of action and that it is uncertain. Moving
Defendants also demur pursuant to Code of Civil Procedure section 338 on the grounds
that Plaintiffs’ causes of action are barred by the applicable statute of
limitations.
CCP § 430.10(f) – Uncertainty
A party
may demur to a complaint where “[t]he pleading is uncertain,” meaning also that
it is “ambiguous [or] unintelligible.” (Cal. Code Civ. Proc. § 430.10, subd.
(f).) The law encourages courts to liberally construe pleadings and disfavors
demurrers for uncertainty. (Morris v. JPMorgan Chase Bank, N.A. (2022)
78 Cal.App.5th 279. 292.)
Moving
Defendants argue that Plaintiffs’ complaint is ambiguous and unintelligible in
that Plaintiffs’ allegations do not distinguish among Defendants and fails to
specify the wrongful acts and omissions committed by each defendant. (Demurrer,
at p. 3.) Moving Defendants also contend that Defendants collectively owned and
managed the Subject Property all at different times: (1) from 2001 to 2022, by
Defendant Mark Thomas Duboise; (2) from 2022 to January 2023, by Defendants
Kevin A. Hernandez, Angel Hernandez, and Maison Properties LLC; and (3) from February
2023 to present, by Moving Defendants. (Id., at pp. 2-3.) As such,
Moving Defendants argue that Plaintiffs entered into at least three different lease
agreements for the Subject Property but fail to differentiate between the
agreements in their allegations creating more uncertainty. (Id., at p.
3.)
The
court finds that Plaintiffs’ complaint does not create sufficient uncertainty for
Moving Defendants, or for any of the Defendants, to not be able to ascertain what
claims are being brought against them and on what grounds. Any level of uncertainty
in Plaintiffs’ complaint can be remedied through appropriate discovery. The
fact that Plaintiffs make allegations against Defendants collectively does not
render the allegations themselves uncertain.
The
demurrer is overruled on these grounds.
Statute of Limitations
Moving
Defendants argue that due to the uncertainty in Plaintiffs’ complaint,
Plaintiffs fail to allege how Moving Defendants are responsible for the
uninhabitable conditions Plaintiffs allegedly endured during their tenancy in
the Subject Property. (Demurrer, at p. 4.) Moving Defendants also contend that as
Plaintiffs allege to have lived in the Subject Property since 2001 and to have
repeatedly alerted Defendants regarding the uninhabitable conditions, then Plaintiffs
did not file their complaint until twenty-three years after complaining to
Defendants making Plaintiffs’ complaint barred by the applicable statute of
limitations pursuant to Code of Civil Procedure section 338. (Ibid.)
In
opposition, Plaintiffs argue that Moving Defendants fail to identify the
relevant statute of limitations or all the doctrines that allow recovery for
breaches, tort, and violations occurring over time that may appear to have
exhausted the statutory time limits. (Opp., at p. 6.)
As
explained above, the level of uncertainty found in Plaintiffs’ complaint can be
remedied through appropriate discovery which will address Moving Defendants’
concerns regarding the statute of limitations issue. Additionally, since Moving
Defendants acquired the Subject Property in 2023, Plaintiffs’ claims against
Moving Defendants would not be barred by the applicable statute of limitations once
these uncertainties are remedied.
The demurrer is overruled on these grounds.
First Cause of Action (Violation of
California Civil Code § 1947.12)
California Civil Code section 1947.12, subdivision
(a)(1), states: “Subject to subdivision (b), an owner of residential real
property shall not, over the course of any 12-month period, increase the gross
rental rate for a dwelling or a unit more than 5 percent plus the percentage
change in the cost of living, or 10 percent, whichever is lower, of the lowest
gross rental rate charged for that dwelling or unit at any time during the 12
months prior to the effective date of the increase.”
Moving
Defendants argue that Plaintiffs’ first cause of action for violation of
California Civil Code section 1947.12 fails as a matter of law since Plaintiffs
fail to allege specific facts demonstrating how Moving Defendants violated the
statute. (Demurrer, at p. 4.) Moving Defendants contend that Plaintiffs will
not be able to show that Moving Defendants violated section 1947.12 since
Moving Defendants did not increase Plaintiffs’ rent and Plaintiffs admit that Moving
Defendants reduced Plaintiffs’ rent per Plaintiffs’ request. (Id., at p.
5.)
In
opposition, Plaintiffs argue that the paragraphs relevant to their first cause
of action are sufficient to defeat a demurrer. (Opp., at p. 5.)
After
reviewing Plaintiffs’ complaint, the court finds that the complaint does not
sufficiently alleges a cause of action for a violation of California Civil Code
section 1947.12 as to Moving Defendants. Plaintiffs allege that Defendant
Maison Properties LLC increased Plaintiffs’ rent from $770.00 to $2,200.00 per
month in September 2022. (Complaint, ¶ 85.) Then, Plaintiffs allege that when
the Subject Property was sold to Moving Defendants, Moving Defendants agreed to
reduce Plaintiffs’ rent to $1,800.00 per month. (Id., ¶ 86.) Although, Plaintiffs
allege that Moving Defendants’ reduced rent was still in violation of section
1947.12, Plaintiffs do not provide any additional facts to show that Moving
Defendants were the ones to increase Plaintiffs’ rent in violation of section
1947.12 after acquiring the Subject Property.
The
demurrer is sustained.
Second and Third Causes of Action (Breach of Warranty of Habitability – Violations
of California Civil Code § 1941.1 and Health & Safety Code § 17920.3)
To establish
a breach of the implied warranty of habitability, Plaintiffs must establish (1)
“the existence of a material defective condition affecting the premises’
habitability,” (2) “notice to the landlord of the condition within a reasonable
time after the tenant’s discovery of the condition,” (3) “the landlord was
given a reasonable time to correct the deficiency, and” (4) “resulting
damages.” (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th
1281, 1297.)
Moving Defendants argue Plaintiffs’
second and third causes of action are duplicative in that California Civil Code
section 1941.1 defines an uninhabitable building by citing Health & Safety
Code section 17920.3 which Plaintiffs use in both causes of action. (Demurrer,
at p. 5.) Moving Defendants also argue that pursuant to Health & Safety
Code section 17920.3, a pest infestation and mold growth must be determined by
a designated health officer or code enforcement officer which Plaintiffs fail
to allege facts showing this determination. (Ibid.) Moving Defendants
argue that California Civil Code section 1941.1 and Health & Safety Code
section 17920.3 merely define the conditions of buildings and do not constitute
causes of actions. (Ibid.) Lastly, Moving Defendants argue that Plaintiffs
have not pled facts with particularity as required for a statutory cause of
action. (Ibid.)
In opposition, Plaintiffs again point
out to the allegations of the complaint arguing that they adequately plead a
breach of implied warranty of habitability. (Opp., at p. 5.)
The court finds that Plaintiffs have alleged sufficient facts to
constitute a cause action for breach of the implied warranty of habitability under
California Civil Code section 1941.1 and Health & Safety Code section
17920.3 since Plaintiffs allege the existence of a material defective condition
by Defendants’ failure to provide code-compliant windows and plumbing
conditions in good working order. (Complaint, ¶ 94.) Plaintiffs also alleged
sufficient facts to establish that Plaintiffs put Defendants on notice, gave
reasonable time to cure, and the resulting damages. However, Plaintiffs fail to
allege that a health officer or a code enforcement officer determined the mold
growth or pest infestations Plaintiffs endured during their tenancy which is
required by section 17920.3, or that Plaintiffs fit within an exception to this
requirement.
As such, the court will sustain the demurrer in part as to the
allegations pertaining to pest infestations and mold, but overrule in part as
to the other uninhabitable conditions alleged. To the extent Plaintiffs allege
a violation of Health & Safety Code section 17920.3 as a separate cause of
action, the court also sustains the demurrer. However, Plaintiffs’ allegations
as to section 17920.3 may remain in the pleading to the extent Plaintiffs
intend to rely on it to prove their underlying breach of the implied warranty of habitability cause of action.
Fourth, Fifth, and Sixth Causes of Action (Negligence – Premises Liability, Nuisance,
and Intentional Infliction of Emotional Distress)
Moving Defendants argue that Plaintiffs do not provide any
facts in support of their causes of action for negligence, nuisance, and
intentional infliction of emotional distress as Plaintiffs only provide legal
contentions and conclusions in support of these. (Demurrer, at p. 5.) Moving
Defendants also contend that Plaintiffs’ claims are barred by the relevant
statute of limitations because Defendants Plaintiffs fail to provide specific
dates on which Defendants were put on notice of the uninhabitable living
conditions. (Id., at p.
6.) Moving Defendants also argue that Plaintiffs fail
to provide any facts that support the element of causation to show that
Defendants were the cause of any of Plaintiffs’ damages. (Ibid.)
For
the same reasons as mentioned above, Moving
Defendants’ statute of limitations argument is meritless as to Plaintiffs’
claims against Moving Defendants.
Additionally,
“[t]he elements of a cause of action for premises liability are the same as
those for negligence: duty, breach, causation, and damages.” (Castellon v.
U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) “Premises liability is
grounded in the possession of the premises and the attendant right to control
and manage the premises.” (Kesner v. Superior Court (2016) 1 Cal.5th
1132, 1158, quotation marks omitted.)
The
court finds that Plaintiffs have alleged sufficient facts to constitute an
action for premises liability in that Plaintiffs allege that (1) Defendants
were the owners and managers of the Subject Property, (2) Defendants’ duty to maintain
the Subject Property, (3) Defendants failure to do so, and (4) causation
between Defendants’ breach and the damages Plaintiffs incurred as a result. (Complaint,
¶¶ 117-126.) Moving Defendants’
arguments are based on the uncertainty of Plaintiffs’ complaint which the court
previously explained could be remedied through appropriate discovery
procedures.
The demurrer is overruled.
To establish
an action for private nuisance, (1) “the plaintiff must prove an interference
with his use and enjoyment of his property”; (2) “the invasion of the
plaintiff’s interest in the use and enjoyment of the land must be substantial,
that is, that it causes the plaintiff to suffer substantial actual damage”; (3)
“the interference with the protected interest must not only be substantial, but
it must also be unreasonable, i.e., it must be of such a nature, duration, or
amount as to constitute unreasonable interference with the use and enjoyment of
the land.” (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3
Cal.App.5th 248, 262-263, citations, italics, brackets, and quotation marks
omitted. Public
nuisances are “substantial and unreasonable” “offenses against, or
interferences with, the exercise of rights common to the public.” (County of
Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292,
305.)
The court finds that Plaintiffs have
alleged sufficient facts to constitute an action for nuisance by alleging facts
pertaining to each of the required elements. (Complaint, ¶¶ 127-137.) As
mentioned above, any uncertainty in Plaintiffs’ complaint can be remedied to
address Moving Defendants’ concerns.
The demurrer is overruled.
“The elements of a prima facie case
for the tort of intentional infliction of emotional distress are: (1) extreme
and outrageous conduct by the defendant with the intention of causing, or
reckless disregard of the probability of causing, emotional distress; (2) the
plaintiff’s suffering severe or extreme emotional distress; and (3) actual and
proximate causation of the emotional distress by the defendant’s outrageous
conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of
that usually tolerated in a civilized community.” (Wilson v. Hynek
(2012) 207 Cal.App.4th 999, 1009, citation and ellipses omitted.)
The court finds that Plaintiffs have not
alleged sufficient facts to constitute an action for intentional infliction of emotional distress. (Complaint, ¶¶ 138-142.)
The demurrer is sustained.
Seventh and Eighth Causes of Action (Breach of Contract and Breach of the Covenant
of Quiet Possession)
Moving Defendants argue that Plaintiffs make conclusory
allegations that Plaintiffs complied with all the terms of the lease agreement
for the Subject Property. (Demurrer, at p. 6.) Additionally, Moving Defendants contend
that Plaintiffs refer to a rental/lease agreement multiple times in their complaint,
but Plaintiffs had multiple agreements with different Defendants making it
impossible to ascertain which agreements Plaintiffs refer to in their
complaint. (Ibid.) Moving Defendants argue that if Plaintiffs refer to their
agreement with Moving Defendants, then Plaintiffs omit the fact that Plaintiffs
agreed to move out of the Subject Property after Moving Defendants successfully
asserted an unlawful detainer action against Plaintiffs for failure to make
timely rent payments. (Ibid.) Lastly, Moving Defendants argue that
Plaintiffs’ seventh and eighth causes of action are duplicative. (Id.,
at p. 7.)
In determining the sufficiency of
pleadings, the court does not sustain a demurrer for “duplicative” causes of
action. Rather, it determines whether the facts, liberally construed and
considered true, are sufficient to state a cognizable cause of
action.
To state a
cause of action for breach of contract, Plaintiff must be able to establish
“(1) the existence of the contract, (2) plaintiff’s performance or excuse for
nonperformance, (3) defendant’s breach, and (4) the resulting damages to the
plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811,
821.)
The court finds that Plaintiffs have
alleged sufficient facts to constitute an action for breach of contract. (Complaint, ¶¶ 143-153.) Any facts pertaining
to Plaintiffs breach of their agreement with Moving Defendants constitutes a
defense for Moving Defendants and does not preclude Plaintiffs from alleging
their cause of action for breach of contract. Any uncertainty in Plaintiffs’
complaint can be remedied.
The demurrer is overruled.
The elements
of a claim for breach of the covenant of quiet enjoyment are: (1) a lease
agreement between plaintiff and defendant; (2) absence of language contrary to
the implied covenant that tenant shall have quiet enjoyment and possession; (3)
act or omission of the landlord, or anyone claiming under the landlord, which
“substantially interfere[s] with a tenant[’]s right to use and enjoy the
premises for the purposes contemplated by the tenancy”; and (4) an applicable
remedy. (See Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578,
588-591.)
The court finds that Plaintiffs have
alleged sufficient facts to constitute an action for breach of the covenant of quiet possession. (Complaint, ¶¶ 154-159.)
As mentioned before, any uncertainty in Plaintiffs’ complaint can be remedied.
The demurrer is overruled.
Ninth and Tenth Causes of Action (Fraud/Deceit/Intentional Misrepresentation
and Negligent Misrepresentation)
Moving Defendants argue that Plaintiffs’ causes of action
for fraud and misrepresentation fail to meet the heightened pleading standard
required. (Demurrer, at p. 7.) Moving Defendants contend that Plaintiffs do not
allege specific misrepresentations made by Defendants or show reliance and
resulting damages. (Ibid.)
“The elements of fraud are (a) a
misrepresentation (false representation, concealment, or nondisclosure); (b)
scienter or knowledge of its falsity; (c) intent to induce reliance; (d)
justifiable reliance; and (e) resulting damage.” (Hinesley v. Oakshade Town
Ctr. (2005) 135 Cal.App.4th 289, 294.) The facts constituting the alleged
fraud must be alleged factually and specifically as to every element of fraud,
as the policy of “liberal construction” of the pleadings will not ordinarily be
invoked. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)
The court finds that Plaintiffs have
alleged sufficient facts to constitute an action for fraud. (Complaint, ¶¶ 160-175.) Although Plaintiffs refer to
Defendants generally, Plaintiffs do allege specific misrepresentations from
Defendants regarding the Subject Property, Defendants scienter, Plaintiffs
reliance on the misrepresentations, and the resulting damages. Any issues of
uncertainty in Plaintiffs’ allegations can be remedied.
The demurrer is overruled.
The elements of a cause of action for
negligent misrepresentation include “[m]isrepresentation of a past or existing
material fact, without reasonable ground for believing it to be true, and with
intent to induce another’s reliance on the fact misrepresented; ignorance of
the truth and justifiable reliance on the misrepresentation by the party to
whom it was directed; and resulting damage.” (Hydro-Mill Co., Inc. v.
Hayward, Tilton & Rolapp Ins. Associates, Inc. (2004) 115 Cal.App.4th
1145, 1154, quotation marks omitted.)
“California courts have recognized a
cause of action for negligent misrepresentation, i.e., a duty to communicate
accurate information, in two circumstances. The first situation arises where
providing false information poses a risk of and results in physical harm to
person or property. The second situation arises where information is conveyed
in a commercial setting for a business purpose.” (Friedman v. Merck &
Co. (2003) 107 Cal.App.4th 454, 477.)
Once again the court finds that
Plaintiffs have alleged sufficient facts to constitute an action for negligent misrepresentation.
(Complaint, ¶¶ 176-182.) Similar to Plaintiffs’ allegations for fraud, Plaintiffs
make allegations pertaining to every element of negligent misrepresentation.
Any issues of uncertainty in Plaintiffs’ allegations can be remedied.
The demurrer is overruled.
2.
Motion to Strike
Legal Standard
Pursuant to Code of Civil Procedure section
436, “the court may, upon a motion made pursuant to Section 435, or at any time
in its discretion, and upon terms it deems proper: (a) Strike out any
irrelevant, false, or improper matter inserted in any pleading. (b) Strike out
all or any part of any pleading not drawn or filed in conformity with the laws
of this state, a court rule, or an order of the court.” The grounds for a
motion to strike must “appear on the face of the challenged pleading or from
any matter of which the court is required to take judicial notice.” (Code Civ.
Proc., § 437.)
Discussion
Punitive Damages
Moving
Defendants move to strike Plaintiffs’ request for punitive damages.
Punitive damages may be awarded in an
action for the breach of an obligation not arising from contract upon clear and
convincing evidence that a defendant has been guilty of oppression, fraud, or
malice. (Civ. Code § 3294, subd. (a).)
“Malice” is defined as “conduct which
is intended by the defendant to cause injury to the plaintiff or despicable
conduct which is carried on by the defendant with a willful and conscious
disregard of the rights or safety of others.” (Civ. Code § 3294, subd. (c)(1).)
“Oppression” is defined as “despicable conduct that subjects a person to cruel
and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code
§ 3294, subd. (c)(2).) “Fraud” is defined as “an intentional misrepresentation,
deceit, or concealment of a material fact known to the defendant with the
intention on the part of the defendant of thereby depriving a person of
property or legal rights or otherwise causing injury.” (Civ. Code § 3294, subd.
(c)(3).)
Per the court’s prior finding that Plaintiffs sufficiently pled their
causes of action for fraud and negligent misrepresentation, the court also
finds that Plaintiffs made sufficient
allegations of Defendants’ fraud, malice, or oppression. As such, Plaintiffs’
request for punitive damages is proper.
The motion to strike is denied.
Attorney’s Fees
Moving
Defendants also move to strike Plaintiffs’ request for attorney’s fees.
Moving
Defendants argue that Plaintiffs allege that a landlord-tenant relationship
existed between Plaintiffs and Moving Defendants when the parties executed a
standardized California Association of Realtors Lease Agreement. (Motion to
Strike, at p. 7.) Moving Defendants contend that while this agreement provides
for the recovery of attorney’s fees to the prevailing party, the recovery is
subject to a condition precedent to engage in mediation prior to engaging in
litigation, otherwise the party commencing the action will not be entitled to
attorney’s fees. (Id., at p. 8.) Moving Defendants argue that since Plaintiffs
did not make any attempt to engage in mediation prior to filing this instant
action, Plaintiffs’ request for attorney’s fees in their complaint must be
stricken. (Ibid.)
Attorney’s fees are recoverable only
when authorized by contract, statute, or law. (Code Civ. Proc. § 1033.5, subd.
(a)(10).) Moving Defendants contend that there is a contract that would entitle
Plaintiffs to attorney’s fees. Additionally, there are statutory grounds that
would provide Plaintiffs’ recovery of their fees in their alleged causes of
action. Thus, Plaintiffs request for attorney’s fees cannot be stricken at this
stage since a determination of whether Plaintiffs should be awarded attorney’s
fees despite their alleged failure to engage in mediation or whether the
statutory provisions are sufficiently met are not an appropriate determinations
for the court to make here.
The motion to strike is denied.
Conclusion
1.
Defendants Jose L. Andrade and Laura V. Andrade’s Demurrer to Plaintiffs’
Complaint is SUSTAINED in part and OVERRULED in part.
2.
Defendants Jose L. Andrade and Laura V. Andrade’s Motion to Strike
Plaintiffs’ Claim for Punitive Damages is DENIED.
The court
will inquire at the hearing whether leave to amend should be granted.