Judge: Teresa A. Beaudet, Case: 22STCV25974, Date: 2023-08-22 Tentative Ruling

Case Number: 22STCV25974    Hearing Date: December 20, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Eddie Morgado (“Morgado”) filed this action on August 10, 2022 against Defendant Giannina Vanessa Salazar (“Salazar”). The Complaint alleges causes of action for (1) contractual and tortious breach of the covenant of quiet enjoyment, (2) nuisance, (3) negligence, (4) violation of Business and Professions Code section 17200 et seq., and (5) violation of Los Angeles Municipal Code section 151.33.

In the Complaint, Morgado alleges that at all times mentioned in the Complaint, Plaintiff occupied the real property located at 1203 N Cherokee Ave, Los Angeles, CA 90038 (the “Subject Property”). (Compl., ¶ 3.) Morgado alleges that as of July 8, 2021, or earlier, Salazar “owned, maintained and/or managed the Subject Property.” (Compl., ¶ 6.)

Morgado alleges that on or about August 1, 1997, he entered into a written lease with the landlord at that time, Corazon Licudan, for the Subject Property. (Compl., ¶ 8.) Morgado alleges that “[o]n or about July 8, 2021. [Morgado] was served with an illegal Notice of Termination of Tenancy informing him that the tenancy would be terminated 60 days from service of the Notice.” (Compl., ¶ 10.) “[Morgado] notified the Los Angeles Housing Department (LAHD) of said Notice. An investigation was made by the LAHD and said Notice was found to be unlawful.” (Compl., ¶ 13.) “[Morgado] was notified by LAHD via letter, dated November 29, 2021, that the landlord submitted a written statement that rescinded the Sixty-Day Notice to Vacate/End Tenancy dated July 8, 2021.” (Compl., ¶ 14.) However, Salazar then “posted on [Morgado’s] front door a ‘Notice to Vacate, Termination of Tenancy’ dated February 9, 2022. Said Notice provided [Morgado] 30 days to vacate the Subject Property.” (Compl., ¶ 15.) Morgado alleges that Salazar’s “sole purpose for serving the February 9, 2022 Notice was to intimidate, harass and cause [Morgado] to vacate the subject property.” (Compl., ¶ 16.) Morgado further alleges that “[i]n or around mid-July 2021, without providing [Morgado] notice, [Salazar] caused [Morgado’s] plants and personal property located on the yard of the subject property to be destroyed.” (Compl., ¶ 19.)

On February 6, 2023, Salazar filed a Cross-Complaint against Eviction Services, LLC and Roes 1-10, alleging a number of causes of action.

Morgado moves for leave to file an amended complaint. Salazar opposes.

On August 22, 2023, the Court issued an Order continuing the hearing on Morgado’s motion for leave to amend complaint from August 22, 2023 to November 29, 2023. The Court’s August 22, 203 Order provides, inter alia, as follows:

“In connection with the reply, Morgado indicates that he served amended responses to Salazar’s Form Interrogatories, Set One, and amended responses to Salazar’s First Set of Requests for Production of Documents. (Second Declaration of Jenifer Anisman, ¶¶ 3-4, Exs. 3-4.) Morgado’s amended response to Form Interrogatory No. 6.1 is “Objection. Calls for expert opinion. Subject to and notwithstanding said objection, responding party responds as follows: Yes.” (Second Declaration of Jenifer Anisman, ¶ 3, Ex. 3.) The Court notes that this evidence was submitted for the first time in connection with Morgado’s reply, such that Salazar has not had the opportunity to respond to it. Thus, the Court will provide Salazar with an opportunity to submit a surreply concerning the evidence submitted in connection with the reply.” (August 22, 2023 Order at pp. 4:24-5:5.)

The Court’s August 22, 2023 Order further provides that “[a]ny surreply by Salazar is to be filed and served by 9/21,¿2023 with a courtesy copy delivered to Dept. 50.¿Morgado’s response, if any, to be filed and served by 10/23,¿2023 with a courtesy copy delivered to Dept. 50.¿The argument and evidence in the supplemental papers are limited to the requested additional information, as discussed above, and the response thereto. The parties may not include any argument or evidence on any other issue.” (August 22, 2023 Order at p. 7:1-7.)

On November 29, 2023, Salazar filed a sur-reply. On November 29, 2023, the Court held a hearing on the instant motion. The Court’s November 29, 2023 minute order provides, inter alia, that “[p]ursuant to the request of defendant, the Hearing on Motion for Leave to Amend Complaint scheduled for 11/29/2023 is continued to 12/20/23 at 10:00 AM in Department 50 at Stanley Mosk Courthouse. The response to the Sur-Reply is to be filed on or before December 7, 2023. No response to the response to the Sur-Reply is to be filed.” On December 1, 2023, Morgado filed a response to Salazar’s sur-reply.

Request for Judicial Notice

The Court grants Morgado’s request for judicial notice filed in support of the reply. The Court also grants Morgado’s request for judicial notice filed on December 1, 2023 in support of Morgado’s response to Salazar’s sur-reply.   

Discussion

Pursuant to Code of Civil Procedure section 473, subdivision (a)(1), “[t]he court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading.” Amendment may be allowed at any time before or after commencement of trial. (Code Civ. Proc., § 576.) “[T]he court’s discretion will usually be exercised liberally to permit amendment of the pleadings. The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified.” (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428 [internal citations omitted].) “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. Superior Court of Los Angeles County (1959) 172 Cal.App.2d 527, 530.) Prejudice includes “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.)

A motion to amend a pleading before trial must include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments. (¿¿Cal. Rules of Court, rule 3.1324, subd. (a).)¿¿ The motion must also state what allegations are proposed to be deleted or added, by page, paragraph, and line number.  (¿Cal. Rules of Court, rule 3.1324, subd¿. (a).) Finally, “¿[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 of Court, Rule 3.1324, subd. (b).)  

As discussed in the Court’s August 22, 2023 Order, Morgado’s counsel attaches as Exhibit “1” to her declaration a copy of Morgado’s proposed First Amended Complaint. (Anisman Decl., ¶ 2, Ex. 1.) Morgado’s counsel states that “[t]he effect of the Amendment would be to add facts, causes of action and damages omitted from the complaint.” (Anisman Decl., ¶ 3.) In the motion, Morgado notes that the proposed First Amended Complaint adds allegations to the existing third cause of action for negligence. (Anisman Decl., ¶ 2, Ex. 1, ¶¶ 43-52.) The proposed First Amended Complaint also adds a sixth cause of action for intentional infliction of emotional distress and a seventh cause of action for “violation of RICO.” (Anisman Decl., ¶ 2, Ex. 1, pp. 12-16.)

Morgado’s counsel states that “[t]he amendment is necessary and proper because the original complaint did not adequately allege all of plaintiff’s damages and omitted important facts to support a prayer for punitive damages, depriving Plaintiff of alleging and litigating all his causes of action.” (Anisman Decl., ¶ 4.) Morgado’s counsel further states that “[t]he facts giving rise to the amended allegations were discovered when I reviewed the file and interviewed the client,” and that “[t]he request for leave to amend was not made earlier because the handling attorney left the firm shortly after filing the complaint.” (Anisman Decl., ¶¶ 5-6.)

In the opposition, Salazar asserts that “[Morgado’s] earlier under oath pleading bars leave to amend…” (Opp’n at p. 2:21-22.) Salazar cites to Congleton v. Nat’l Union Fire Ins. Co. (1987) 189 Cal.App.3d 51, 62, where the Court of Appeal noted that “an amendment which contradicts an admission in the original pleading will ordinarily not be allowed unless a showing is made of mistake or other excuse for changing the allegations of fact…Similarly, denial of leave may be upheld where the amendment contradicts a stipulation.” (Internal emphasis omitted.) But Salazar does not provide any argument as to how Morgado’s proposed First Amended Complaint purportedly contracts any admission in the original Complaint or contradicts a stipulation. 

Salazar also asserts that “[Morgado’s] verified under oath discovery responses bar leave to amend.” (Opp’n at p. 3:15-16.) As set forth above, Morgado seeks to add allegations to the third cause of action for negligence, including, inter alia, that “[a]s a result of Defendant’s conduct over the extended period of time, Plaintiff suffered severe emotional distress including suffering, anguish, fright, horror, nervousness, grief, anxiety, worry, shock, humiliation, and shame.” (Anisman Decl., ¶ 2, Ex. 1, ¶ 49.)

Salazar indicates that she served Form Interrogatories, Set One on Morgado, including Interrogatory No. 6.1, which states, “Do you attribute any physical, mental, or emotional injuries to the INCIDENT? (If your answer is ‘no,’ do not answer interrogatories 6.2 through 6.7).” (Alvarado Decl., ¶ 2, Ex. A.) Morgado’s response to Salazar’s Form Interrogatory No. 6.1 states, inter alia, “Plaintiff’s answer is NO. As such, per the interrogatory, Plaintiff shall not answer interrogatories 6.2 through 6.7.” (Alvarado Decl., ¶ 3, Ex. B.) Salazar asserts that “examination of the Plaintiff’s verified discovery responses evidence the FAC’s new causes of action are a sham.” (Opp’n at p. 6:14-15.)

In connection with the reply, Morgado indicates that he served amended responses to Salazar’s Form Interrogatories, Set One, and amended responses to Salazar’s First Set of Requests for Production of Documents. (Second Declaration of Jenifer Anisman, ¶¶ 3-4, Exs. 3-4.) Morgado’s amended response to Form Interrogatory No. 6.1 is “Objection. Calls for expert opinion. Subject to and notwithstanding said objection, responding party responds as follows: Yes.” (Second Declaration of Jenifer Anisman, ¶ 3, Ex. 3.)

Morgado also notes that his responses to Salazar’s Form Interrogatories, Set One, include a preliminary statement providing, inter alia, that “[i]t should be noted that the responding party has not fully completed an investigation of the facts relating to this case, has not fully completed discovery in this action, and has not completed trial preparation. All of the responses contained herein are based only upon such information and documents as are presently available to and specifically known to this responding party and disclose only those contentions which presently occur to this responding party.” (Alvarado Decl., ¶ 3, Ex. B, p. 2.) The “Preliminary Statement” also provides that “[t]his responding party accordingly reserves the right to change any response herein as additional facts are ascertained, analyses are made, legal research is completed and contentions are made.” (Ibid.)

In the sur-reply, Salazar discusses Morgado’s responses to certain requests for admission propounded by Salazar. (See Sur-Reply at pp. 2:22-4:4.) Salazar asserts that such responses “run contrary to the Motion for Leave to Amend and the proposed First Amended Complaint alleging that Plaintiff has suffered mental anguish, emotional distress…” (Sur-Reply at p. 4:6-8.)

As noted by Morgado, and as discussed above, the Court’s August 22, 2023 Order in this case provides that “[i]n connection with the reply, Morgado indicates that he served amended responses to Salazar’s Form Interrogatories, Set One, and amended responses to Salazar’s First Set of Requests for Production of Documents. (Second Declaration of Jenifer Anisman, ¶¶ 3-4, Exs. 3-4.) Morgado’s amended response to Form Interrogatory No. 6.1 is ‘Objection. Calls for expert opinion. Subject to and notwithstanding said objection, responding party responds as follows: Yes.’ (Second Declaration of Jenifer Anisman, ¶ 3, Ex. 3.) The Court notes that this evidence was submitted for the first time in connection with Morgado’s reply, such that Salazar has not had the opportunity to respond to it. Thus, the Court will provide Salazar with an opportunity to submit a surreply concerning the evidence submitted in connection with the reply.” (August 22, 2023 Order at pp. 4:24-5:5.) The Court’s August 22, 2023 Order further provides that “[a]ny surreply by Salazar is to be filed and served by 9/21,¿2023 with a courtesy copy delivered to Dept. 50.¿Morgado’s response, if any, to be filed and served by 10/23,¿2023 with a courtesy copy delivered to Dept. 50.¿The argument and evidence in the supplemental papers are limited to the requested additional information, as discussed above, and the response thereto. The parties may not include any argument or evidence on any other issue.” (Id. at p. 7:1-7.)

However, Salazar’s sur-reply does not address the evidence Morgado submitted in connection with his reply. Rather, Salazar discusses Morgado’s responses to certain requests for admission propounded by Salazar. As noted by Morgado, the “Requests for Admission…were never a subject of [the] Motion, Opposition or Reply…and never addressed by the Court in its Order.” (Response to Sur-Reply at p. 2:17-20.) The Court finds that Salazar’s discussion of such discovery requests is outside the scope of the briefing permitted by the Court’s August 22, 2023 Order.

Salazar also argues in the Sur-Reply that “[t]he proposed amended complaint fails to include a necessary indispensable party” and that “Plaintiff [sic] counsel attempt to file an amended complaint is made in a sham attempt to avoid a Walker motion to reclassify.” (Sur-Reply at pp. 5:14-15; 6:21-23.) The Court also finds that these arguments are outside the scope of the briefing permitted by the Court’s August 22, 2023 Order.

In the opposition to the instant motion, Salazar also contends that “you cannot obtain emotional distress damages based upon property damage,” that “there’s no claim stated for intentional infliction of emotional distress,” and that “the FAC does not state a cause of action for RICO.” (Opp’n at pp. 6:1-2; 6:16-17; 6:24.) However, the Court notes that in Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048, the Court of Appeal noted that “the preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings.” Thus, the Court does not find that the asserted legal deficiency of the proposed amendments warrants denial of leave to amend.

            As to Morgado’s proposed cause of action for violation of RICO, Salazar asserts that “Civil Code § 1714.10 mandates a Court order before suing an attorney and their client for civil conspiracy.” (Opp’n at p. 6:25-26.) But as noted by Morgado, the proposed First Amended Complaint does not allege any cause of action against Salazar’s attorney. (Anisman Decl., ¶ 2, Ex. 1.)

            Lastly, Salazar asserts that “[t]he attorney (former) and his eviction service are necessary and indispensable parties because Defendant will be left attempting to defend his prior attorney. The prejudice cannot be lessen unless the prior attorney is a party in the Plaintiff’s Complaint. For these reasons, there is a non-joinder and the FAC cannot proceed.” (Opp’n at p. 7:23-26.)[1] The Court notes that the seventh cause of action for violation of RICO in Morgado’s proposed FAC alleges that “[t]he predicate acts alleged here is the formation of an eviction company ‘Eviction Services, LLC’ created solely to defraud members of the public including Plaintiff.” (Anisman Decl., ¶ 2, Ex. 1, ¶ 78.) The Court notes that Salazar does not provide any evidence in connection with the opposition demonstrating that there has been a failure to include indispensable parties here. And even if she did, Salazar does not appear to cite to legal authority demonstrating that this is grounds to deny Morgado’s instant motion.

In addition, as set forth above, on February 6, 2023, Salazar filed a Cross-Complaint against Eviction Services, LLC, alleging a number of causes of action. As noted by Morgado, on May 15, 2023, Salazar filed amendments to the Cross-Complaint naming “Brandon Michael Relkoff” in place of “Roe 1” and “Michael Williams” in place of “Roe 2.”

Based on the foregoing, the Court finds that Morgado has demonstrated good cause for leave to file the proposed First Amended Complaint.

Conclusion

Based on the foregoing, Morgado’s motion for leave to amend complaint is granted. The Court orders Morgado to file and serve the First Amended Complaint within 3 days of the date of this Order.¿ 

Morgado is to provide notice of this Order.¿ 

DATED:  December 20, 2023                        ________________________________

Hon. Rolf M. Treu

Judge, Los Angeles Superior Court