Judge: Stephen P. Pfahler, Case: PC058000, Date: 2023-01-10 Tentative Ruling

Case Number: PC058000    Hearing Date: January 10, 2023    Dept: F49

Dept. F-49

Date: 1/10/23

Case # PC058000

Calendar # 6

Trial Date: 1/23/23

LEAVE TO AMEND COMPLAINT

MOVING PARTY: Plaintiff Mylene Lopez-Farooq

RESPONDING PARTY: None.

RELIEF REQUESTED

Motion for Leave to File a Third Amended Complaint

SUMMARY OF ACTION

On September 25, 2017, Plaintiff Mylene Lopez-Farooq (“Plaintiff”) filed a complaint against Defendants Bank of America N.A. (“Bank of America”), Ditech Financial, LLC f/k/a Green Tree Servicing, LLC (“Ditech”), and Clear Recon Corp. (“Clear Recon”) alleging causes of action for: (1) violation of Civil Code § 2923.55; (2) violation of Civil Code § 2923.6; (3) violation of Civil Code § 2923.7; (4) violation of Civil Code § 2924.12; (5) breach of contract; (6) breach of the covenant of good faith and fair dealing; (7) negligence; (8) negligent infliction of emotional distress; (9) unfair business practices.¿¿¿

On May 24, 2018, the court sustained Bank of America’s demurrer without leave to amend as to the First through Fourth Causes of Action.¿ As the demurrer was sustained without leave to amend as to Bank of America, Judgment was entered in favor of Bank of America, and against Plaintiff, on July 19, 2018.¿¿¿

On November 26, 2018, Plaintiff, self-represented, filed the First Amended Complaint (“FAC”) for (5) breach of contract; (6) breach of the covenant of good faith and fair dealing; (7) negligence; (8) negligent infliction of emotional distress; and (9) unfair business practices.¿

On February 18, 2022, Plaintiff filed a second amended complaint, added a new Plaintiff Ibrahim Farooq, and asserted nineteen causes of action against several defendants including Bank of America, Bank of America Corp. and newly added defendants BAC Home Loans Servicing, LP fka Countywide Home Loans Servicing LP, ReconTrust Company, N.A., , Countywide Home Loans, Inc., and Mortgage Electronic Registration Services, Inc (sued as “MERS, Inc.”) (collectively the Specially Appearing Defendants (“SAD”). Thereafter, Plaintiff substituted multiple Defendants for Does. 

On November 30, 2022, Plaintiff filed the instant motion for leave to file a third amended complaint. The hearing on December 15, 2022 was continued to January 10, 2023.

RULING: DENIED

Plaintiff moves for leave to file a third amended complaint to make the following amendments: (1) substitute the names of the DOE Defendants; (2) add additional causes of action based on new facts discovered after the original complaint was filed; (3) parties mergers and acquisitions of parties that are already defendants, mostly parties listed are now acquired by a new party since the complaint was filed; (4) Defendants filed bankruptcy since the original complaint was filed; (5) Defendants who wrongfully foreclosed Plaintiffs primary owner-occupied property are the new DOE Defendants; and (6) alter ego legal liability as to all Defendants.

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…” (emphasis added).

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 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.)

Plaintiff has not complied with any of the requirements of CRC Rule 3.1324. Further, the current trial date of January 23, 2023 is only a few weeks away. This would likely delay the trial and discovery has closed, thus there would be prejudice to the other parties if new defendants, causes of action, and liability theories were added. The Court notes there is no pending motion to continue trial.

Accordingly, the motion must be DENIED.

Moving party to give notice.