Michael Finn v. Raidu Krishna

MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT

 

MOVING PARTY: Plaintiff Michael J. Finn

RESPONDING PARTY(S): Unopposed

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff Michael Finn owns real property at 21110 Denker Ave, Torrance, CA.  Defendant Raidu Krishna owns or controls the real property directly adjacent. Plaintiff alleges Defendant has failed to properly maintain the property, resulting in damage to Plaintiff’s property. 

Plaintiff now moves for leave to file a First Amended Complaint.  The motion is unopposed.

TENTATIVE RULING:

Plaintiff’s Motion for Leave to File a First Amended Complaint is GRANTED.

A stand-alone FAC must be filed and served to all current parties within 10 days.  Any new parties must be served in a timely manner as provided by law.

Moving party to give notice, unless waived.  

DISCUSSION:

Motion for Leave to File First Amended Complaint

I. Judicial Notice

Pursuant to Plaintiff’s request, the court takes judicial notice of Exhibits 1, 2, and 3.

II. Legal Standard

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).)  

III. Analysis

Plaintiff seeks leave to file a First Amended Complaint.  A motion for leave to amend must state with particularity what allegations are to be amended. Namely, it must state what allegations in the previous pleading are proposed to be deleted and/or added, if any, and where, by page, paragraph, and line number. (CRC, Rule 3.1324(a)(2)-(3).) The motion must be accompanied by a 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. (CRC, Rule 3.1324(b).) The motion must also be accompanied by the proposed amended pleading, numbered to differentiate it from the prior pleadings or amendments. (CRC, Rule 3.1324(a)(1).) It is within the court’s discretion to require compliance with Rule 3.1324 before granting leave to amend. (Hataishi v. First American Home Buyers Protection Corp.¿(2014) 223 Cal.App.4th 1454, 1469.) Plaintiff has complied with the requirements of Rule 3.1324.

Plaintiff’s new counsel, Sherry Ann Lear, substituted into this matter on or about October 10, 2022. After visiting the property and reviewing the Complaint, counsel determined the Complaint was “inadequate to state proper and clear causes of action for the relief desired,” and “failed to name as parties all owners of record for the two properties.” (Mtn. 3: 11-14; Lear Decl. ¶ 4.) Thus, Plaintiff seeks to remedy these issues by modifying the legal theories asserted in the First Amended Complaint, and adding a cause of action for declaratory relief. The factual underpinnings, however, remain largely unchanged. (See Atkinson v. Elk Corp., (2003) 109 Cal. App. 4th 739, 761[“it is irrelevant that new legal theories are introduced as long as the proposed amendments ‘relate to the same general set of facts.”].)  Plaintiff will also add Plaintiff’s wife Rosanna Finn as a second Plaintiff, and Defendant Raidu Krishna’s wife Sarda Krishna as a second Defendant. (Lear Decl. ¶ 10.)

Plaintiff timely sought leave to amend after discovering the need to do so.  Moreover, by failing to oppose, [FN 1]  Defendant has not shown it will be unduly prejudiced by the amendment. In fact, the parties jointly represent they are attempting to mediate and work towards a settlement. Moreover, trial in this matter was recently continued to July 24, 2024. Thus, leave to amend is appropriate.  This is consistent with the “policy of great liberality in allowing amendments at any stage of the proceeding so as to dispose of cases upon their substantial merits.”  (Bd. of Trustees v. Superior Ct. (2007) 149 Cal. App. 4th 1154, 1163.)

 Accordingly, Plaintiff’s Motion for Leave is GRANTED.

A stand-alone FAC must be filed and served to all current parties within 10 days.  Any new parties must be served in a timely manner as provided by law.

Moving party to give notice, unless waived.  

IT IS SO ORDERED.

Dated:   February 2, 2023 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

FN 1 - The Proof of Service attached to the motion and supporting documents shows electronic service on Defendant’s counsel on November 21, 2022.

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.