TENTATIVE RULING

Calendar: 5

Date: 1/13/2023

Case No: 21 GDCV01392 Trial Date: May 15, 2023

Case Name: Patatanian v. Athas Capital Group, Inc., et al.

MOTION FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT

Moving Party:      Plaintiff Filaip Patatanian   

Responding Party:       Defendants Athas Capital Group, et al.   (No Opposition) 

RELIEF REQUESTED: File a Fourth Amended Complaint

Date Original Complaint filed:   December 15, 2021 

Effect of Amendment 

Adds allegation that the deed of trust was forged and seeks treble damages against defendant Athas pursuant to CCP section 749 for forging a deed of trust. 

RELEVANT FACTS:

Plaintiff Filaip Patatanian alleges that since 2001, plaintiff has owned a unit of real property on Liberty Avenue in Glendale.  Plaintiff alleges that in 2018, defendants Athas Capital Group, Armine Kalogeras, Crown Escrow Corporation, Rosalina Cisneros and certain Doe defendants took part in a mortgage transaction involving the subject property.  Plaintiff alleges that the mortgagee, whose true identity is currently unknown (the “Culprit”), stole the identity of plaintiff, and forged plaintiff’s signature on the documents in the transaction, including the property deed and loan applications, tax returns and notes, and used a counterfeit driver’s license and social security card in the transaction.   

Toward the completion of the transaction, Athas wired $318,791.86 to the Culprit’s bank account, and the Culprit long ago withdrew all funds from the subject bank account. 

Plaintiff alleges that as a result of the transaction, the property became burdened with a lien.  The Culprit made very few or no monthly payments toward the balance of the mortgage loan, the mortgage loan went into default and the default precipitated a foreclosure sale.  Plaintiff alleges that plaintiff first became aware of the transaction in mid-December 2021, when a notice of foreclosure sale was placed on the front door of the property.   Plaintiff alleges that he never consented to the transaction, never had notice of the transaction, and only recently learned that his identity had been stolen. 

The file shows that on January 21, 2022, the court granted a preliminary injunction, enjoining defendants from conducting a foreclosure sale of the subject property.  Plaintiff has given the required undertaking under CCP section 529. 

On August 12, 2022, the court heard a motion by plaintiff for leave to file a Second Amended Complaint, which was granted.  

On October 28, 2022, the court heard a demurrer and motion to strike brought by defendant Athas challenging the sufficiency of the Second Amended Complaint.   The demurrer was overruled in part and sustained with leave to amend in part, and the motion to strike was denied in part and granted with leave to amend in part.  Plaintiff was permitted thirty days leave to amend the first cause of action for fraudulent misrepresentation and to allege appropriate grounds for seeking attorneys’ fees as damages.   

The October 28, 2022 minute order also states:

“Request in the Opposition for leave to amend to claim new remedies and causes of action is DENIED, as improperly seeking affirmative relief without bringing a noticed motion. Request is DENIED WITHOUT PREJUDICE to plaintiff obtaining a stipulation for leave to amend or seeking such relief in a noticed motion.”

On November 29, 2022, plaintiff filed the Third Amended Complaint. 

On December 13, 2022, plaintiffs filed this motion seeking to amend the TAC to allege additional facts referred to in opposition to the previous demurrer.  

ANALYSIS:

CCP § 473 (a)(1) provides that “The court may..., in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading...”  The court’s discretion should usually be exercised liberally to permit amendment of pleadings.    Nestle v. City of Santa Monica (1971) 6 Cal.3d 920, 939.  This is especially true where the motion to amend is timely made and the granting of the motion will not prejudice the opposing party.  Morgan v. Superior Court (1959, 2nd Dist.) 172 Cal.App.2d 527, 530.  

The Second District in Record v. Reason (1999) 73 Cal.App.4th 472, set forth the standard for reviewing the trial court’s discretionary determination on a motion to amend:

“"[T]he trial court has wide discretion in allowing the amendment of any pleading [citations], [and] as a matter of policy the ruling of the trial court in such matters will be upheld unless a manifest or gross abuse of discretion is shown. [Citations.]" (Bedolla v. Logan & Frazer (1975) 52 Cal. App. 3d 118, 135-136 [125 Cal. Rptr. 59].)”

Record, at 486.

In this case, it appears that the amendments are consistent with the previous allegations made throughout this action that the deed of trust was in fact forged, and seeks statutory remedies under CCP section 749 permitted with respect to a forged deed of trust. 

Plaintiff had previously argued in opposition to the previous demurrer to the SAC that CCP section 749 applied and requested leave to amend to add the remedy provided by that statute.  [Ex. 1, Opposition, p. 13:14-23].  

As noted above, the court ordered that to add entirely new causes of action or seek new remedies on amendment, plaintiff was required to file a noticed motion or obtain a stipulation to make such amendments.  This noticed motion accordingly followed.   

The showing is not ideal, as the facts of the forgery have been known or suspected and alleged throughout this litigation, and it appears that no new facts have been learned, but in the course of opposing the demurrer to the SAC, in September and October of 2022, counsel for plaintiff for the first time performed the legal research that gave rise to the potential treble damages claim. [Koczara Decl., paras. 3-5].  This does not appear to have been new law or a theory which could not have been asserted in the original complaint.    

Plaintiff relies on CCP section 749, which provides, in pertinent part:

“(a) In an action for damages by a homeowner or trustor against a beneficiary of a trust deed on real property consisting of a single-family residence containing not more than four dwelling units, or against an assignee or successor in interest thereof, wherein it is established the trust deed was forged in whole or in part by the beneficiary, judgment may be entered for three times the amount at which the actual damages are assessed.”

An amendment to permit the addition of a claim for the subject damages is permitted to ensure that all potential damages claims are addressed in this single action.  

There is no opposition to the motion, so no showing that the delay of plaintiff in failing to earlier claim such damages for the alleged forgery will cause any prejudice to defendants.  Absent prejudice, delay alone is held not to be a sufficient ground for denial of leave to amend, and where no prejudice is shown, “the liberal rule of allowance prevails.”  Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565.   The trial date is in May of 2023, which appears to provide sufficient time to address the new claim for treble damages, and no other obvious prejudice appears which would ordinarily justify denying leave to amend, such as loss of evidence which due to the delay has been destroyed, cannot be recollected, or cannot be replaced.  

No prejudice appearing or urged, and no timely opposition having been filed, the liberal rule of allowing amendment accordingly prevails here, and the motion is granted. 

RULING:

[No Opposition].

UNOPPOSED Motion for Leave to File a Fourth Amended Complaint is GRANTED.  

Plaintiff is ordered to efile a separate signed copy of the Fourth Amended Complaint on eCourt no later than close of business this date, and the Fourth Amended Complaint will be deemed served on the currently appearing defendants upon the efiling of the Fourth Amended Complaint.  

 GIVEN THE CORONAVIRUS CRISIS, AND TO ADHERE TO HEALTH GUIDANCE THAT DICTATES SAFETY MEASURES, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

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