Judge Robert S. Draper, Case 20STCV37967 2023-04-20 Tentative Ruling

This is an action for wrongful death, fraud, and elder abuse. The operative Second Amended Complaint (“SAC”) alleges as follows. Plaintiffs Richard Cordova (“Cordova”), and Maria Poroy (“Poroy”) are the children of decedent Sumie Cordova (“Decedent”). (SAC ¶ 14.)

On or about September 12, 2018, Cordova was contacted by multiple firms regarding the foreclosure sale of Decedent’s property (“Subject Property”). (Ibid.) Cordova was shocked to learn this, as the Subject Property had no loans or encumbrances and was paid off. (SAC ¶ 15.) Decedent had disappeared from the Subject Property and Plaintiffs were not aware of her whereabouts. (Ibid.)

After investigating, Cordova discovered that Defendant Bank of America, N.A. (“BOA”) (incorrectly named as Bank of America Corporation) had approved a reverse mortgage application on the Subject Property. (SAC ¶ 16.) Plaintiffs had not been contacted regarding this mortgage. (Ibid.) Additionally, Cordova discovered that Defendant Hector Velasco (“Velasco”) had befriended Decedent and encouraged her to apply for the reverse mortgage, which Decedent did not need. (SAC ¶ 17.) BOA approved loans to Decedent in the aggregate sum of $570,000.00. (Ibid.)

Velasco made Decedent write checks to him from her bank account. (SAC ¶ 18.) These checks totaled over $20,000.00. (Ibid.) Additionally, Velasco and Defendant Gbolabo Folayan (“Folayan”) removed Decedent from her home and forcefully placed her into a senior care facility, where she was not given proper care. (Ibid.) While she was in this senior care facility, her home was foreclosed upon. (SAC ¶ 20.) Decedent passed away shortly thereafter in the senior care facility. (SAC ¶ 22.)

On June 17, 2021, the Court overruled BOA’s Demurrer in part, and sustained it in part. The Court sustained with leave to amend BOA’s Demurrer to the Eighth, Ninth, Tenth, and Eleventh Causes of Action. The Court Overruled BOA’s Demurrer to the Ninth Cause of Action, except as to Plaintiff Estate of Sumi Cordova, which was sustained.

On July 2, 2021, Plaintiffs filed the operative Second Amended Complaint asserting eleven causes of action: Wrongful Death; Neglect in Violation of Welfare & Institution Code § 15610.57;Negligence; Negligent Supervision; False Imprisonment; Fraud; Elder Abuse; Wrongful Foreclosure; Violation of Homeowner Bill of Rights; Financial Elder Abuse in Violation of Welfare & Institution Code § 15610.30; and Negligence.

On May 18, 2022, the Court sustained without leave to amend all claims asserted by the Estate of Sumie Cordova, all claims asserted by Plaintiff Maria Poroy, and all claims asserted by Plaintiff Richard Cordova in his individual capacity as to BOA. Additionally, the Court sustained BOA’s Demurrer to the Eighth and Eleventh Causes of Action without leave to amend.

The court may, in furtherance of justice and on any proper terms, allow a party to amend any pleading by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect. (Code Civ. Proc., § 473, subd. (a)(1); Branick v. Downey Savings & Loan Association (2006) 39 Cal.4th 235, 242.) The court may also, in its discretion and after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. (Code Civ. Proc., § 473, subd. (a)(1); Branick, supra, 39 Cal.4th at 242.) As judicial policy favors resolution of all disputed matters between the parties, leave to amend is generally liberally granted. (See Kolani v. Gluska (1998) 64 Cal.App.4th 402, 412.) The court may deny the plaintiff’s leave to amend if there is prejudice to the opposing party, such as delay in trial, loss of critical evidence, or added costs of preparation. (Id.)

A motion to amend a pleading before trial must (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. (Cal. Rules of Court, rule 3.1324(a).) A separate supporting 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 reason why the request for amendment was not made earlier must accompany the motion. (Id., rule 3.1324(b).)

Here, Plaintiffs seek file a Third Amended Complaint that adds a cause of action for breach of contract. Plaintiffs contend that Defendants will not be prejudiced by the addition, as it is based on the same set of facts pled in the original complaint. (Iwuchuku Decl. ¶ 3.) Plaintiffs do not state why they delayed in asserting a cause of action for breach of contract.

Moreover, as BOA notes, the proposed Third Amended Complaint attached to Plaintiffs’ Motion contains causes of action the Court already dismissed without leave to amend on demurrer. Additionally, as BOA notes, the proposed Third Amended Complaint continues to assert causes against BOA on behalf of the Estate of Sumie Cordova, Richard Cordova, and Maria Poroy, despite the Court ruling that the only proper plaintiff as to BOA is Cordova as personal representative for the Estate of Sumie Cordova.

While Plaintiffs may very well have a valid cause of action for breach of contract against BOA, the Court cannot allow an amendment to the complaint that includes previously dismissed plaintiffs and causes of action.

Accordingly, Plaintiffs’ Motion for Leave to Amend the Second Amended Complaint is DENIED without prejudice. Should Plaintiffs wish to file a motion for leave to amend the pleading that includes a proposed complaint that following the Court’s prior rulings, the Court will consider the amendment at that time.