Judge Randolph M. Hammock, Case 19STCV07481 2022-09-29 Tentative Ruling

Plaintiff Marina Borawick alleges she entered into a written lease agreement with Defendants to lease real property as a personal residence. As part of the lease, Defendants orally agreed “not to move in a family member to the Plaintiff’s unit, which was in consideration for Plaintiff providing landscaping materials and services that upgraded the Defendants’ property including arranging to have 100’s of potted plants and other landscaping materials planted at Defendants’ property.” (FAC ¶ 7.) Plaintiff alleges that Defendants breached the covenant of quiet enjoyment by permitting another tenant’s noise nuisance and cutting off the water sprinkler so as to destroy Plaintiff’s plants, among other things. Plaintiff asserts causes of action for (1) breach of contract, (2) fraud, (3) continuing private nuisance, (4) constructive eviction, (5) assault and battery, (6) IIED, (7) negligence, and (8) unfair business practices.

Plaintiff’s Motion for Leave to File a Second Amended Complaint is GRANTED, in which she may supplement to include new causes of action which have arisen after the filing on the original Complaint (CCP § 464 (a)), as well as amend any previous causes of action, per CCP §473 (a)(1).

If a plaintiff wishes to amend a complaint after the answer has been filed or after the demurrer has been filed and after the hearing on the demurrer, or if he or she has already amended the complaint “of course,” permission of the court must be obtained before the amendment will be allowed. (CCP §§ 473(a)(1), 576.)

Motions for leave to amend the pleadings are directed to the sound discretion of the court. “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading . . . .” (CCP § 473(a)(1); see CCP § 576.) Policy favors liberally granting leave to amend so that all disputed matters between the parties may be resolved. (See Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) Absent prejudice to the adverse party, the court may permit amendments to the complaint “at any stage of the proceedings, up to and including trial.” (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761 [internal quotes omitted].)

Although denial is rarely justified, a judge has discretion to deny leave to amend if the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party. (Morgan v. Sup.Ct. (1959) 172 Cal.App.2d 527, 530; see also Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490). An opposing party is prejudiced where the amendment would necessitate a trial delay along with a loss of critical evidence, added preparation expense, increased burden of discovery, etc. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488.

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).)

Plaintiff seeks leave to both supplement and amend her complaint to include: the Defendants’ continued attempts to evict her following her initial complaint; a retaliatory eviction claim; additional facts material to her initial claims that have taken place subsequent to the complaint; and allegations detailing her damages. (Mtn. 2: 2-5.)

In Opposition, Defendants argue the court should deny the motion for leave “due to undue delay resulting in significant hardship and prejudice to Defendants, as trial has been set and a Motion for Summary Judgment has been drafted.” Defendants subsequently filed their motion for summary adjudication on August 16, 2022.

Defendants argue that Plaintiff unduly delayed in seeking leave to amend to add the retaliatory eviction claim. Defendants contend that Plaintiff was aware of the alleged attempts to evict her at the time she filed her first complaint. Defendants recognize that delay alone is not grounds to deny leave to amend (Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565), but urge they will be unduly prejudiced by the delay in this case. “Although courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial [citations] this policy should be applied only ‘[w]here no prejudice is shown to the adverse party....”’ (Magpali v. Farmers Grp., Inc. (1996) 48 Cal. App. 4th 471, 487.) A different result is indicated “[w]here inexcusable delay and probable prejudice to the opposing party” is shown. (Id.)

Here, Defendants argue the proposed amendment “opens a new inquiry into retaliatory eviction [and] has a substantial effect on Defendants' case, costs, and ability to defend fairly.” (Opp. 4: 22-24.) Defendants, however, fail to clearly articulate what specific undue prejudice they will face in this case.

Defendants mainly rely on Magpali, but that case is distinguishable. In Magpali, the Court of Appeal found denial of leave to amend was proper when a party sought leave “nearly two years after the complaint was originally filed” and the party “did not give an explanation for leaving the [proposed] claim out of the original complaint or bringing the request to amend so late.” (Id. at 486.) Importantly, Magpali dealt with a situation where trial was not just looming, but was set to begin. “Where the trial date is set, the jury is about to be impaneled, counsel, the parties, the trial court, and the witnesses have blocked the time, and the only way to avoid prejudice to the opposing party is to continue the trial date to allow further discovery, refusal of leave to amend cannot be an abuse of discretion.” (Id. at 488 [emphasis added].)

Here, unlike in Magpali, trial is still months away. Moreover, Defendants have not demonstrated that the new allegations would substantially increase the burden of discovery. Defendants admit that the allegations of retaliatory eviction came to light during Plaintiff’s deposition—and likely even before that. (Opp. 4: 4-5.) This court does recognize, however, that new discovery may require a modification of the trial date. This issue will be further discussed at the hearing.

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.