Judge: Stephanie M. Bowick, Case: 21STCV26287, Date: 2023-02-16 Tentative Ruling
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Case Number: 21STCV26287 Hearing Date: February 16, 2023 Dept: 19
After consideration of the briefing filed, Plaintiffs Roberto Juarez, Juana Gabriela Juarez, Fernando
Antonio Juarez, Andrew Rex Juarez, Arisbe Gomez Lopez, Daniela Ojeda Gomez, Joseph
Frank Alamilla Gomez, and Hector Manzo Gomez, a minor by and through his
guardian ad litem, Arisbe Gomez Lopez’s unopposed Motion for Leave to File the
First Amended Complaint is GRANTED.
Plaintiffs are ordered to formally file the First Amended Complaint within
5 court days of service of this ruling.
Counsel for Plaintiffs to give notice.
STATEMENT OF FACTS
This is a habitability
action. Plaintiffs Roberto
Juarez, Juana Gabriela Juarez, Fernando Antonio Juarez, Andrew Rex Juarez, Arisbe
Gomez Lopez, Daniela Ojeda Gomez, Joseph Frank Alamilla Gomez, and Hector Manzo
Gomez, a minor by and through his guardian ad litem, Arisbe Gomez Lopez
(collectively, “Plaintiffs”) bring suit against Defendants Tatiana Swan,
Konstanza Uribe Swan, Robert Kenneth Swan, Robert Kenneth Swan, III, Kostanza
Swan as trustee of the Konstanza Family Trust, Kolfax Arms Apartments LLC, and
Robert Swan as trustee of the Konstanza Family Trust (collectively,
“Defendants”) alleging the following causes of action:
1. Breach Of Implied Warranty of
Habitability;
2. Breach Of Statutory Warranty of
Habitability;
3. Breach Of the Covenant of Quiet
Enjoyment;
4. Negligence;
5. Violation Of Civil Code Section 1942.4;
and
6. Private Nuisance.
Plaintiffs filed the instant Motion for Leave to File the
First Amended Complaint (the “Motion”).
Pursuant to Code of Civil Procedure sections 473 and 576,
Plaintiffs move for an order granting leave to amend the Complaint to add two
causes of action for Alter Ego Liability and Violation of the Anti-Harassment
of Tenants Ordinance on the grounds that facts were discovered during recently
received verified discovery responses giving rise to the two additional causes
of action.
As an initial matter, Defendants do not oppose the instant Motion,
effectively consenting to the Court granting it. (See Cal. R. Ct., 8.54(c) [“A
failure to oppose a motion may be deemed a consent to the granting of the
motion.”].)
A.
Procedural Requirements
Under California Rules of
Court Rule, rule 3.1324, subdivision (a), a motion to amend a pleading shall:
(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 Ct., rule 3.1324(a).)
Under California Rule of
Court, rule 3.1324, subdivision (b), a separate declaration must accompany the
motion and must specify:
(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.
(Cal. Rules Ct., rule
3.1324(b).)
The Court finds that
Plaintiff complies with California Rules of Court Rule, rule 3.1324,
subdivision (a). (See Roy Diaz Decl., ¶¶ 2-9.)
B. Analysis
“The court may, in furtherance of justice, and on any terms as may be
proper, allow a party to amend any pleading or proceeding 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; and may, upon like terms, enlarge the time
for answer or demurrer. The court may likewise, in its discretion, 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(a)(1).) “Any judge, at any time
before or after commencement of trial, in the furtherance of justice, and upon
such terms as may be proper, may allow the amendment of any pleading or
pretrial conference order.” (Code Civ. Proc., § 576.)
The policy in California is that leave to amend is to be granted
liberally, to accomplish substantial justice for both parties. (Hirsa v. Superior Court (1981) 118
Cal.App.3d 486, 488-89.) “If the motion to amend is timely made and the
granting of the motion will not prejudice the opposing party, it is error to
refuse permission to amend.” (Morgan v. Sup. Ct. (1959) 172 Cal.App.2d
527, 531.) “Generally, leave to amend must be liberally granted provided there
is no statute of limitations concern, nor any prejudice to the opposing party,
such as delay in trial, loss of critical evidence, or added costs of
preparation.” (Solit v. Tokai Bank, Ltd.
New York Branch (1999) 68 Cal.App.4th 1435, 1448.)
Here, Plaintiff argues leave to amend should be granted on the grounds
that doing so would be in the interest of justice and would not prejudice
Defendants. (See Motion, pp. 4-7.) The motion is not opposed.
The Court agrees with Plaintiffs that granting leave to amend the
Complaint would not prejudice Defendants. Trial has not yet been scheduled.
For the foregoing reasons, the Motion is GRANTED.