Judge: Richard S. Whitney, Case: 37-2019-00029739-CU-OR-CTL, Date: 2024-03-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - February 28, 2024

03/01/2024  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  Other Real Property Motion Hearing (Civil) 37-2019-00029739-CU-OR-CTL HS INDEPENDENCE LLC VS WAFA KATTO [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: CROSS-COMPLAINANT'S MOTION FOR LEAVE TO FILE A SECOND AMENDED CROSS-COMPLAINT is DENIED.

Cross-Complainant Wafa Katto ('Cross-Complainant') seeks to file a second amended cross-complaint.

Cross-Defendant FOUNDATION ESCROW NORTH COUNTY, INC. ('Cross-Defendant') opposes the motion. The policy permitting amendment is strong, but amendment may be rejected where there is a showing of prejudice or unfair surprise. (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 296–297.) '[I]t is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.' (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.) 'Leave to amend is properly denied when the facts are undisputed and as a substantive matter no liability exists under the plaintiff's new theory.' (Huff v. Wilkins (2006) 138 Cal.App.4th 732, 746.) A long unexcused delay is a sufficient reason to deny leave to amend. (Bidari v. Kelk (2023) 90 Cal.App.5th 1152, 1173.) 'It would be patently unfair to allow [the opposing party] to defeat [the moving party's] summary judgment motion by allowing them to present a 'moving target' unbounded by the pleadings.' (Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 176.) Cross-Complainant filed her original cross-complaint on November 15, 2019. On May 26, 2020, Cross-Complainant filed an amendment to name Cross-Defendant (to replace ROE 3). On April 24, 2023, this Court deemed admitted Cross-Complainant's requests for admissions served on Cross-Defendant Ninus Malan. (ROA # 395.) As a consequence, it is deemed admitted that Cross-Defendant Ninus Malan forged the subject deed. Cross-Defendant filed its motion for summary judgment on January 18, 2024. Cross-Complainant now seeks to amend to allege, inter alia, a conspiracy between Cross-Defendant Ninus Malan and Cross-Defendant to commit forgery to obtain interest in the subject property. Cross-Complainant's counsel declares '[i]t was also not until the Foundation Escrow motion for summary judgment that Foundation Escrow representative Andrea Schmitt clearly and unequivocally admitted her participation in the conspiracy with Malan regard the forged deed.' (Decl. Zryd, ¶ 6.) It is unclear to the Court how such conclusion was reached. Andrea Schmitt declared 'Foundation Escrow was not involved in the execution or notarization of either grant deed.' (Decl. Schmitt¸¶ 3; ROA # 424.) Further, Andrea Schmitt declared 'Foundation Escrow has never had any relationship with Katto other than serving as her escrow officer for her 2017 purchase of the subject property' and 'Foundation Escrow has never made any transfers of interest in the subject property.' (Decl. Schmitt¸¶¶ 7, 9; ROA # 424.) Calendar No.: Event ID:  TENTATIVE RULINGS

3066696  46 CASE NUMBER: CASE TITLE:  HS INDEPENDENCE LLC VS WAFA KATTO [IMAGED]  37-2019-00029739-CU-OR-CTL Cross-Complainant wholly fails to acknowledge this motion represents an attempt to present a moving target for Cross-Defendant after Cross-Defendant filed a motion for summary judgement. While the policy to permit leave to amend is strong, it is not without limits. The Court is persuaded this is a time when leave should not be granted. The motion is denied.

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