Judge: Stephen P. Pfahler, Case: 19CHCV00565, Date: 2022-09-14 Tentative Ruling

Case Number: 19CHCV00565    Hearing Date: September 14, 2022    Dept: F49

Dept. F-49

Date: 9-14-22

Case #19CHCV00565

Trial Date: 3-13-23 c/f 5-9-22

LEAVE TO AMEND

MOVING PARTY: Plaintiff, Riquerme Berroa, Jr.

RESPONDING PARTY: Unopposed/Defendant, Maria Barrera aka Emma Rivas

RELIEF REQUESTED

Motion for Leave to File a First Amended Complaint

SUMMARY OF ACTION

On February 10, 2017, Plaintiff Riquerme Berroa, Jr. entered into a lease for a certain dwelling unit with Defendant Maria Barrera aka Emma Rivas. The rental is located at 11870 Jouett St., Lakeview Terrace. Plaintiff alleges the unit lacks a certificate of occupancy, thereby rendering it illegal. On June 19, 2019, Defendant entered the premises and removed the kitchen sink, then the stove a number of days later. Plaintiff alleges such conduct was part of an effort to constructively evict him from the residence. Plaintiff eventually vacated the premises.

On July 10, 2019, Plaintiff filed a complaint for Intentional Misrepresentation, Negligent Misrepresentation, Breach of Contract, Breach of Covenant of Good Faith and Fair Dealing, Declaratory Relief, and Constructive Eviction. Defendant was personally served in the state of Arizona on July 17, 2019. The clerk entered default on August 21, 2019. Defendant filed an answer on August 22, 2019. The court entered default judgment for $211,854.80 on December 3, 2019.

On September 22, 2020, the court granted the motion to vacate the default and default judgment. Defendant answered on the same day.

RULING: Granted.

Plaintiff moves for leave to file a first amended complaint (“FAC”). Plaintiff moves for leave to add nine new causes of action for declaratory relief, negligent breach of implied covenant of habitability, intentional breach of implied covenant of habitability, nuisance (negligent), nuisance (intentional), breach of implied covenant of quiet use and enjoyment, negligent violation of statutory duty, intentional violation of statutory duty, and wrongful eviction/illegal self-help. Plaintiff also seeks to add new defendant Esteban Rivas. The court’s electronic filing system shows no opposition or reply at the time of tentative ruling publication cutoff.

A motion for leave to amend must comply with the requirements set forth in California Rules of Court Rule 3.1324, which states as follows:

“(a)      Contents of motion

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.

(b)        Supporting declaration

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…”

Dilatory delays and prejudice to the opposing parties is a valid ground for denial. (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.)  Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, or added costs of preparation such as an increased burden of discovery. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488.)

Leave to amend is generally liberally granted. (Code Civ. Proc., § 473(a); Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 296.) The court will not generally consider the validity of the proposed amended pleading in ruling on a motion for leave, instead deferring such determinations for a demurrer or motion to strike, unless the proposed amendment fails to state a valid claim as a matter of law. (Kittredge Sports Co. v. Sup.Ct. (Marker, U.S.A.) (1989) 213 Cal. App.3d 1045, 1048; California Casualty Gen. Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 280–281 disapproved of on other grounds by Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390.)

The declaration in support of the motion represents that current counsel was assigned the case after the filing of the original complaint. Upon preparing the case for trial, counsel realized the damages sought would not conform to proof of the operative complaint, and additional causes of action were necessary to accord full relief. Counsel was delayed in bringing the motion due to a personal health problem. [Declaration of Pamela Mozer.] The declaration of Mozer incorporates a draft of the changes. [Id., Ex. C.]

The court finds the underlying circumstances leading to the motion sufficiently account for the timing and showing of diligence. The court also finds the proposed allegations arise from the operative pleading. Given the limited discovery and the March 2023 trial date, the court finds no showing of prejudice as a result of the amended pleading.

The unopposed motion is therefore granted. Plaintiff is ordered to separately file the amended complaint within 10 days of this order.

Plaintiff to give notice.