Judge Randolph M. Hammock, Case Number: 20STCV40419, Date: 2024-04-15 Tentative Ruling

RESPONDING PARTY(S): Defendants 4820 Bellflower, Inc., Linda Abruzzo, Coro Community Management and Consulting, LLC, and Specially Appearing Defendant Karen Kokowitz

Plaintiff Marco Aiello owns a condominium unit in North Hollywood. Plaintiff alleges the premises suffered a sewer back-up incident causing excessive damages. Plaintiff also alleges the Association acted in bad faith by promulgating proposed rule changes harmful to Plaintiff and in violation of applicable laws. Plaintiff asserts claims against 4220 Bellflower, Inc., the association’s president, and the property manager for (1) negligence, (2) violation of Davis-Stirling Common Interest Development Act, (3) Violation of CC&Rs, (4) intentional interference with contract, and (5) declaratory relief.

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 moves for leave to amend to file a First Amended Complaint. By the proposed amendments, Plaintiff will add a sixth cause of action for intentional concealment against all previously-named Defendants and doe Defendants. Additionally, Plaintiff seeks leave to add two new causes of action for breach of contract and breach of the implied covenant of good faith and fair dealing against a new Defendant, Farmers Insurance. Finally, Plaintiff seeks to supplement the complaint with additional allegations regarding Defendants’ alleged failure to mitigate the plumbing issues at the property.

Plaintiff asserts it did not learn of the facts underlying the new claims and allegations until conducting discovery in the Fall of 2023. (Cordero-Sacks Decl. ¶¶ 31, 33.) During that time and for a period after, the parties were in the midst of scheduling a mediation in hopes of settling the matter. (Id. ¶¶ 14, 15.) Thus, Plaintiff asserts he timely sought leave to amend.

Defendants oppose the motion. First, Defendants argue all three causes of action are barred by the applicable statute(s) of limitations because the claims do not “relate back” to the complaint. Second, Defendants contend leave to amend at this point would be “highly prejudicial” because the allegations substantially alter the posture of the case and impose significant discovery obligations. Third, Defendants argue the claims against the insurer fail as a matter of law. Fourth, Defendants maintain that the amended pleading contains allegations protected by the attorney client privilege. Finally, Defendants contend Karen Kokowitz should be dismissed as a Defendant based on Plaintiff’s failure to serve her within three years of the filing of the complaint.

Here, Plaintiffs’ motion complies with CRC Rule 3.1324(a) as it provides 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).)

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].) While the court appreciates that the amendments may expand the scope of the case, Defendants have not demonstrated they will be unduly prejudiced by the amendments. The new allegations are based on the same general facts on which the Complaint is based. Moreover, trial is not set until September 22, 2025, leaving all parties ample time to conduct discovery and prepare for trial on any new facts or theories. Defendants have likewise not demonstrated the amended complaint contains allegations protected by the attorney-client privilege.

The court makes no conclusion on the merits as to the new claims. Rather, the “better course of action” is to permit the amendment, “and then let the parties test its legal sufficiency in other appropriate proceedings.” (Atkinson v. Elk Corp. (2003) 109 Cal. App. 4th 739, 760.)

The court likewise defers any determination as to Defendants’ argument that Defendant Kokowitz must be dismissed for the failure to serve her within three years of the Complaint’s filing. (See CCP §§ 583.210 & 583.250 [“requiring dismissal where defendant is not served within three years].) If they choose, Defendants may file a standalone noticed motion asserting this contention, and this court will address the argument at that time. In any event, this plays no role in the instant analysis.

Therefore, leave to amend is appropriate. This conclusion 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.)

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.