Judge: Ronald F. Frank, Case: 20TRCV00300, Date: 2024-04-09 Tentative Ruling
Case Number: 20TRCV00300 Hearing Date: April 9, 2024 Dept: 8
Tentative Ruling¿¿
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HEARING DATE: April 9, 2024¿¿
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CASE NUMBER: 20TRCV00300
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CASE NAME: Randy Malveau; Erma Malveau v. Rita
Collins, et al.
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MOVING PARTY: Plaintiff, Erma and Randy Malveau
RESPONDING PARTY: Defendant, Rita Collins, Sundiata J. Collins in his capacity as
Executor of the Estate of Earl C. Collins, deceased (No Opposition)
TRIAL DATE: Not Set.
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MOTION:¿ (1) Motion for Leave of Court to File Third Amended Complaint
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Tentative Rulings: (1) DENIED without prejudice.
The Court does not see in the court file any moving papers to substitute
a personal representative for the Decedent, although a hearing on such a motion
is on calendar
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I. BACKGROUND¿¿¿
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A. Factual¿¿¿
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On
April 9, 2020, Plaintiffs, Randy Malveau and Erma Malveau filed a Complaint for
Preliminary and Permanent Injunction against Defendant, Earl Collins, Rita
Collins, Country Records Research, Inc., and DOES 1 through 50. On January 25,
2021, Plaintiffs filed a First Amended Complaint (“FAC”). On October 21, 2021,
Plaintiffs filed a Second Amended Complaint (“SAC”) alleging Causes of Action
for: (1) Fraud; (2) Negligence; (3) Elder Abuse; and (4) Breach of Contract.
Plaintiffs now file a Motion
for Leave to file Third Amended Complaint (“TAC”).
B. Procedural¿¿¿
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On February 20, 2024, two and one-half
years after the SAC, Plaintiffs filed this Motion Leave
of Court to File Third Amended Complaint. On March 5, 2024, Plaintiffs filed a
Motion to Continue this Hearing from March 14, 2024 to April 9, 2024. To date,
no opposition has been filed.
II. ANALYSIS¿¿
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Leave to amend is permitted under Code of Civil Procedure section
473, subdivision (a) and section 576. The policy favoring amendment and
resolving all matters in the same dispute is “so strong that it is a rare case
in which denial of leave to amend can be justified. . ..” “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 ‘where no prejudice is shown to
the adverse party . . .. [citation]. A different result is indicated
‘where inexcusable delay and probable prejudice to the opposing party’ is
shown. [Citation].” (Magpali v. Farmers Group (1996) 48 Cal.App.4th 471,
487.)
A motion for leave to amend a pleading must also comply with the
procedural requirements of California Rules of Court, Rule 3.1324, which
requires a supporting declaration to set forth explicitly what allegations are
to be added and where, and explicitly stating what new evidence was discovered
warranting the amendment and why the amendment was not made earlier. The motion
must also include (1) a copy of the proposed and numbered amendment, (2)
specifications by reference to pages and lines the allegations that would be
deleted and added, and (3) a declaration specifying the effect, necessity and
propriety of the amendments, date of discovery and reasons for delay. (See Cal.
Rules of Court, rule 3.1324, subds. (a), (b).)
B.
Discussion
Here, Plaintiffs
note that their pleadings have been based on an alleged loan that was to be
provided to them by Defendants. The Plaintiffs allegedly have overpaid the loan
provided by the Defendants and claim they are owed a refund for the
overpayment. Plaintiffs assert that after Defendant’s initial Default, at the
Prove Up Hearing the Court was told by Defendants that they did not understand
the amount or gravity of the damages being sought against them, and the Court
ordered Plaintiffs to file an amended Complaint. After this, Plaintiffs note
that a demurrer was filed to heir FAC, which was overruled on February 10,
2022. After this, Plaintiffs contend that Defendant, Earl Collins died on
November 7, 2022, and despite a CMC on that day, nothing was mentioned about
his death. Plaintiff notes that it was not until June 12, 2023, that the Plaintiffs
were notified of Earl Collins’ death by Defendants’ filing of the Death
Certificate with the Court. On that same date, Plaintiffs note that Defendant’s
counsel, M. Toney Smith substituted out of the case, leaving Defendant, Rita
Collins in pro per.
Next, on
September 1, 2023, Plaintiffs note that they filed an Ex Parte Application to
facilitate a proper disposition of the case given that there was a pending
trial date and Defendants had filed a Petition for Appointment of an
Administrator of the decedent Earl Collins’ Estate. Plaintiffs note that a
substitution of attorney was filed on September 6, 2023, notifying the Court of
these defendants that Ludlow B. Creary II was now representing Defendant, Rita
Collins. Plaintiffs note their Ex Parte Application was heard on September 6, 2023,
and Mr. Creary appeared on behalf of Rita Collins. Plaintiffs contend the trial
date was vacated and TSC was set for January 5, 2024, and subsequently
continued to February 2, 2023.
Plaintiffs
note that after competing applications for appointment of Administrator were
heard, the Probate Court, on January 19, 2024, appointed Sundiata Colins to be
the Executor of the Estate of Earl Collins in Case No. 23STPB09663. Plaintiff
also notes that a Creditors Claim was filed in that Probate case on January 29,
2024 on behalf of Plaintiffs, Randy and Erma Malveau.
Based on the
above sequence of events, Plaintiffs have filed this Motion for Leave to File
TAC pursuant to Code of Civil Procedure section 377.41. Plaintiffs assert that
their proposed TAC seeks to add allegations and facts believed to be necessary
to substitute the Administrator of the estate of Earl Collins in place of
Defendant, Earl Collins (now deceased). Under section 377.41, “[o]n motion, the court shall allow a pending
action or proceeding against the decedent that does not abate to be continued
against the decedent's personal representative or, to the extent provided by
statute, against the decedent's successor in interest, except that the court
may not permit an action or proceeding to be continued against the personal
representative unless proof of compliance with Part 4 (commencing with Section
9000) of Division 7 of the Probate Code governing creditor claims is first
made.” (Code Civ. Proc. § 377.41.) Before an action or proceeding may be
continued against the decedent's personal representative or successor in
interest, all of the following conditions must be satisfied: (1) a claim is
first filed with the¿estate¿pursuant to Prob. Code, § 9000 et seq.; (2) the
claim is rejected in whole or in part; and (3) within three months after the
notice of rejection is given, the plaintiff applies to the court in which the
action or proceeding is pending for an order to substitute the personal
representative or successor in interest in the action or proceeding.¿This
requirement only applies if the notice of rejection contains a statement that
the plaintiff has three months within which to apply for an order for
substitution. (Prob. Code, § 9370(a).) No recovery will be allowed
in the action against the property in the decedent's¿estate¿unless proof is
made of compliance with these requirements. (Prob. Code, § 9370(b).)
Here,
Plaintiffs have only attached the Probate Court filing, but the motion, nor the
attached declaration and exhibits demonstrate that the claim was rejected in
whole or in part, nor is there indication that this current claim has been made
within three (3) months of the notice of rejection was given. There has also
not been an application for an order for substitution into this case. This
Court notes that Plaintiffs motion does not indicate that the Motion for Leave
to File TAC is acting as the Application for an Order for Substitution. This
motion is procedurally defective without Plaintiffs moving this Court to allow
the pending action against Defendant, Earl Collins’ personal representative or
successor in interest, despite decedent having passed on November
7, 2022, and Plaintiffs finding out about his passing on June 12, 2023. As
such, this Court DENIES the Motion for Leave to File Third Amended Complaint,
and instead, recommends Plaintiffs follow the guidelines set forth in Code of
Civil Procedure § 377.41 and Probate Code § 900, et seq. to file a Motion for
an Order Substituting Personal Representative for Deceased Defendant.
III.
CONCLUSION¿¿¿
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For the foregoing reasons, Plaintiffs’
Motion for Leave to File their Third Amended Complaint is DENIED without
prejudice.
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Plaintiffs are ordered to give notice.¿¿¿¿¿