Judge: Stephen Morgan, Case: 22AVCV00477, Date: 2022-09-06 Tentative Ruling
Case Number: 22AVCV00477 Hearing Date: September 6, 2022 Dept: A14
Background
This is a contract action. Plaintiff Will M. Pryor (“Plaintiff”) presents that he had five accounts with Defendant Bank of America, N.A. (“Defendant”), consisting of:
1. A checking and savings account under Reo Assets and Investment Servicing Co., LLC; and
A checking and savings account under Will Pryor; and
One account (unspecified type) under happiibook, LLC.
Plaintiff alleges that all accounts were maintained without interruption until around May 07, 2021 when they were closed without any warning, notification, cause, or reason. Plaintiff further alleges that the funds for the Reo Assets and Investment Servicing Co., LLC accounts ($3,000.00) were returned in the form of a check without a reason, but that the money from the other three accounts (approximately $153,000.00 were not returned). Plaintiff contends that he made numerous attempts to have his money returned, but was told in May 2021 that Defendant had a legal right to hold the funds for 90 days and to investigate, that they would give a reason, and resolve the situation. Plaintiff alleges that, to date, he has not received the money from his accounts.
On July 21, 2022, Plaintiff filed his Complaint alleging five (5) causes of action for: (1) Negligence, (2) Negligent Performance of Contract, (3) Negligent Failure to Warn, (4) Breach of Contract, and (5) Conversion.
On July 27, 2022, Plaintiff filed his First Amended Complaint (“FAC”) alleging four (4) causes of action for: (1) Negligence, (2) Negligent Performance of Contract, (3) Negligent Failure to Warn, and (4) Conversion.
On August 10, 2022, Plaintiff filed a Motion for Leave to Amend the Complaint.
On August 23, 2022, Defendant filed a Notice of Non-Opposition stating that it does not oppose Plaintiff’s Motion to Amend Complaint on procedural grounds but does not stipulate to the propriety of the proposed amended complaint and that it reserves all rights regarding available pleadings challenges if and when the proposed amended complaint is filed.
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Legal Standard
Standard for Leave to Amend – “A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike. A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties. The time for responding to an amended pleading shall be computed from the date of service of the amended pleading.” (Cal. Code Civ. Proc. § 472(a).)¿
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 seeks to amend his FAC as he did not include the “complaints and documents of the original complaint.” (Motion p. 1.)
No Opposition has been filed.
The Court has looked to the proposed Second Amended Complaint (“SAC”). It has found the following issues:
Will M. Pryor is the only Plaintiff listed; however, Plaintiff states that happiibook LLC is also a plaintiff under No. 3 as a corporation qualified to do business in California.
Plaintiff presents that Defendant is both a business organization, form unknown, and a public entity – National Association under No. 4. A public entity is defined as “the state and any office, department, division, bureau, board, commission, or agency of the state, the Regents of the University of California, a county, city, district, public authority, public agency, and any other political subdivision or public corporation in this state.” (Cal. Code Civ. Proc. § 416.50.)
Plaintiff presents that there are both Does 1-20 who were the agents or employees of the named defendants acting within the scope of that agency or employment as well as an unlisted number of Does who are persons whose capacities are unknown to the Plaintiff in No. 4.
Plaintiff asserts that this action is brought under Cal. Civ. Code §§ 1812.10 and 2984.4 in No. 6. Cal. Civ. Code §§ 1812.10 and 2984.4 requires either (1) an affidavit stating facts showing that the action has been commenced in a superior court and court location described in this section as a proper place for the trial of the action to be filed concurrently with the complaint, or (2) that those facts may be stated in a verified complaint. Plaintiff has neither attached an affidavit nor affixed a verification to his proposed SAC.
The Court believes that the Motion to Amend Complaint is deficient as Cal. Rules of Court, Rule 3.1324 was not followed. 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).)¿
Here, the motion itself has been singed under penalty of perjury under the laws of the State of California by Plaintiff, but only states:
THE AMENDMENT IS NECESSARY BECAUSE THE FIRST AMENDMENT INADVERTANTLY DID NOT INCLUDE THE COMPLAINTS AND DOCUMENTS OF THE ORIGINAL CIMPLAINT [sic]. THE DEFENSE COUSEL [sic] BROUGHT THIS TO MY ATTENTION AND ATTORNEY, KRISTINA HOVSEPYAN ADVISED THAT I WANT TO MAKE THEAT [sic] CORRECTION.
THE DEFENDANT HAS NOT FILED AN ANSWER.
(Motion p. 1.)
Accordingly, the Motion to Amend Complaint is DENIED.
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Conclusion
Plaintiff Will M. Pryor’s Motion for Leave to Amend the Complaint is DENIED.