Judge Stephen Morgan, Case 19AVCV00751 2022-10-04 Tentative Ruling

Judge: Stephen Morgan, Case: 19AVCV00751, Date: 2022-10-04 Tentative Ruling

Department A14 Tentative Rulings

If parties are satisfied with the tentative ruling, parties may submit by emailing the courtroom at ATPDeptA14@LACOURT.ORG.

If a matter is also scheduled for a CMC, TSC, OSC, etc., an appearance is still required even if the parties are willing to submit on the tentative ruling.

Case Number: 19AVCV00751 Hearing Date: October 4, 2022 Dept: A14

Background

This is a professional negligence action. Plaintiff Rubin Banks (“Plaintiff”) that on or about February 05, 2019, Plaintiff experienced a major fire at his residence alleges located at 4552 Ridgewood Court, Palmdale, California, 93552 and Palmdale Fire Department was immediately summoned for emergency help, assistance, and possible rescue. Plaintiff further alleges that, on the same date, approximately one hour to one and a half hours after the initial emergency call for assistance, an employee from Defendant BFA Adjusters, (dba) (“BFA”), named Josh appeared at the site of the fire and inquired as to (1) who the home owner was, and (2) whether the home owner had fire or disaster insurance. Plaintiff presents that he informed Josh that he was the home owner and he had fire insurance coverage and Josh responded by (1) obtaining paperwork for Plaintiff to sign, and (2) made representations to Plaintiff that he knew an “outstanding general contractor,” Defendant Vic’s Inc. Com., (dba) (“Vic’s”), who would perform very professional work product. Plaintiff contends that his mortgage company authorized a payout of approximately $180,000.00 for the express purpose of all necessary repairs and replacement to the resident; however, Vic’s did not provide an accounting or failed to make the repairs or restitution along with all costs.

On October 16, 2019, Plaintiff filed his Complaint.

The operative pleading is the First Amended Complaint (“FAC”) which alleges 15 causes of action for: (1) Professional Negligence, (2) Breach of Implied Contract, (3) Breach of Contract, (4) Fraudulent Misrepresentation, (5) Breach of Covenant of Good Faith and Fair Dealings, (6) Unfair Business Practices (Cal. Bus. & Prof. Code § 17200 et seq.), (7) Unlawful Business Practices (Cal. Bus. & Prof. Code § 17200 et seq.), (8) Unlawful Business Practices (Cal. Bus. & Prof. Code § 17200 et seq.), (9) Unlawful, Deceptive Business Practices California’s Consumers Legal Remedies Act (Cal. Civ. Code § 1770 et. seq.), (10) Negligent Referral California’s Consumers Legal Remedies Act (Cal. Civ. Code § 1770 et. seq.), (11) Recovery on Contractor Licenses Bond, (12) Disgorgement of Money Paid (Cal. Bus. & Prof. § 7031.5), (13) Fraudulent Concealment of a Material Fact, (14) Recission of Contract, and (15) Fraud and Deceit.

On July 20, 2022, Plaintiff filed this Motion for Leave to File a Second Amended Complaint (“SAC”).

The hearing was scheduled for August 30, 2022. No Opposition was filed prior to the hearing.

On August 30, 2022, a hearing on the matter was held. Plaintiff appeared. There were no appearances on behalf of Defendant. The Court accepted the proposed SAC and noted that defendant BFA had not been served. The hearing on the Motion for Leave to file a SAC was continued to October 04, 2022.

No Opposition has been filed. “All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days. . .before the hearing.” (Cal. Code Civ. Proc. § 1005(b).) An Opposition was due by September 20, 2022. Should an Opposition be filed, it is now untimely.

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Legal Standard

Standard for Leave to Amend – Trial courts may, in furtherance of justice and on any proper terms, allow a party to amend any pleading. (Cal. Code Civ. Proc., §473(a)(1); Branick v. Downey Savings & Loan Association (2006) 39 Cal.4th 235, 242.) Trial courts may also, in their 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. (Cal. Code Civ. Proc., §473(a); Branick, supra, 39 Cal.4th at 242.) Leave to amend is generally liberally granted, provided there is no statute of limitations concern. (Kolani v. Gluska (1998) 64 Cal.App.4th 402, 411.) Additionally, “judicial policy favors resolution of all disputed matters in the same lawsuit.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal. App. 3d 1045, 1047.) Trial courts 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. (Branic, supra, at 242.)

Under California Rules of Court Rule 3.1324, 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).)

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Discussion

Application – Plaintiff has provided his proposed SAC. Plaintiff presents that discovery has brought to light that Defendants have attempted to remove their assets beyond the reach of this Court, so Plaintiff must amend his FAC to reflect to statutory violations and to obtain valid judgment.

Plaintiff’s proposed SAC is a form complaint. Plaintiff does not follow Cal. Rules of Court Rule 3.1324(a). Further, though the moving papers are signed, they are not under the penalty of perjury under the laws of the State of California and, therefore, are not considered a declaration for the purposes of Cal. Rules of Court, Rule 3.132(b). (See Cal. Code Civ. Proc. § 2015.5.)

Accordingly, the Motion for Leave to File a SAC is DENIED.

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Conclusion

Plaintiff Rubin Banks’ Motion for Leave to File Second Amended Complaint is DENIED without prejudice.