Judge: Teresa A. Beaudet, Case: 23STCV18436, Date: 2024-06-25 Tentative Ruling
Case Number: 23STCV18436 Hearing Date: June 25, 2024 Dept: 50
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RAMONA MAINE LP DBA RODEO GALLERIA, Plaintiff, vs. OK KYNG YIM DBA DOO ME SAN GOL,
et al., Defendants. |
Case No.: |
23STCV18436 |
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Hearing Date: |
June 25, 2024 |
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Hearing Time: |
10:00 a.m. |
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[TENTATIVE]
ORDER RE: MOTION FOR ORDER GRANTING PLAINTIFF
LEAVE TO FILE A FIRST AMENDED COMPLAINT |
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Background
Plaintiff Ramona Maine
LP dba Rodeo Galleria (“Plaintiff”) filed a “Complaint-Unlawful Detainer” in
this action against Defendant Ok Kyng Yim dba Doo Me San Gol.
In the Complaint, Plaintiff alleges, inter alia, that it is the
owner of premises located at 833 S. Western Ave., Booth #28, Los Angeles, CA
90005. (Compl., ¶¶ 3-4.) On or about September 16, 2019, Ok Kyng Yim dba Doo Me
San Gol agreed to rent the premises. (Compl., ¶ 6.) Plaintiff alleges that a
3-day notice to pay rent or quit was served, and that at the time the 3-day
notice to pay rent or quit was served, the amount of rent due was $25,886.00. (Compl., ¶¶ 9, 12.) The Complaint
alleges that Plaintiff seeks, inter alia, possession of the
premises and past-due rent of $25,886.00. (Compl., ¶ 19.)
Plaintiff now moves for an order granting Plaintiff leave to file a
First Amended Complaint. Ok Kyong Yim (erroneously sued as Ok Kyng Yim)
(herein, “Defendant”) opposes.
Discussion
Pursuant to
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. (Ibid.) 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).)
In the motion, Plaintiff
asserts that “[i]n the unlawful detained [sic] cause of action,
Plaintiff was limited in monetary damages allegations to the pay rent or quit
notice amount plus the daily rental value through the date possession was
returned. After the return of possessions [sic], if Plaintiff seeks monetary
damages greater than allowed under the unlawful detainer cause of action, a
First Amended Complaint must be filed…Plaintiff seeks to file a First Amended
Complaint seeking damages older than the one year statutory restriction.” (Mot.
at p. 5:15-23.)
Plaintiff cites to Civil Code section 1952.3,
subdivision (a), which provides as follows:
“(a) Except as provided in
subdivisions (b) and (c), if the lessor brings an unlawful detainer proceeding
and possession of the property is no longer in issue because possession of the
property has been delivered to the lessor before trial or, if there is no
trial, before judgment is entered, the case becomes an ordinary civil action in
which:
(1) The lessor may obtain any relief to
which he is entitled, including, where applicable, relief authorized by Section 1951.2; but, if the lessor seeks to recover
damages described in paragraph (3) of subdivision (a) of Section
1951.2 or any other damages not recoverable in the unlawful detainer
proceeding, the lessor shall first amend the complaint pursuant to Section 472 or 473 of the Code of Civil Procedure so
that possession of the property is no longer in issue and to state a claim for
such damages and shall serve a copy of the amended complaint on the defendant
in the same manner as a copy of a summons and original complaint is served.
(2) The defendant may, by appropriate
pleadings or amendments to pleadings, seek any affirmative relief, and assert
all defenses, to which he is entitled, whether or not the lessor has amended
the complaint; but subdivision (a) of Section 426.30 of
the Code of Civil Procedure does not apply unless, after delivering
possession of the property to the lessor, the defendant (i) files a
cross-complaint or (ii) files an answer or an amended answer in response to an
amended complaint filed pursuant to paragraph (1).”
A copy of Plaintiff’s
proposed First Amended Complaint is attached as Exhibit 1 to Plaintiff’s
counsel’s declaration. (Robison Decl., ¶ 4, Ex. 1.) The proposed First Amended
Complaint (“FAC”) alleges one cause of action for breach of written lease.
(Robison Decl., ¶ 4, Ex. 1.)
The proposed FAC
alleges, inter alia, that “[o]n or about July 6, 2015, Carmanita
Corporation…executed a Leasehold Deed Of Trust, Assignment Of Leases And Rents
And Security Agreement as security for a $500,000 loan from 841 Family Limited
Partnership to Carmanita Corporation.” (Robison Decl., ¶ 4, Ex. 1, ¶ 4.)[1] “On
or about September 16, 2019, Carmanita Corporation and Defendant, OK KYNG YIM
DBA DOO ME SAN GOL, executed a Commercial Sublease Agreement for subleasing of
the premises located at 833 S. Western Ave., Booth #28, Los Angeles, CA 90005.”
(Ibid., ¶ 6.) “On or about July 16, 2021,
841 Family Limited Partnership foreclosed upon the Leasehold Deed Of Trust,
Assignment Of Leases And Rents And Security Agreement…” (Ibid.,
¶ 7.)
The proposed FAC further
alleges that “[a]s of September 8, 2023, Defendant, OK KYNG YIM DBA DOO
ME SAN GOL, was delinquent in the payment of rent and estimated CAM in the sum
of $75,496.16.” (Robison Decl., ¶
4, Ex. 1, ¶ 11.) The proposed FAC alleges that “[p]ursuant to the terms
of the Leasehold Deed Of Trust, Assignment Of Leases And Rents And Security
Agreement, any delinquency in the payment of rent by Defendant, OK KYNG YIM DBA
DOO ME SAN GOL, was assigned to 841 Family Limited Partnership. In addition to
said rent delinquency, Defendant, OK KYNG YIM DBA DOO ME SAN GOL, is liable to
Plaintiff for the additional sum of $35,000.00.” (Ibid.,
¶ 12.)
In his supporting
declaration, Plaintiff’s counsel states that “Defendant vacated the
premises prior to the unlawful detainer trial date. As such, by operation of
statute (Civil Code, Section 1952.3) this case
became a regular civil action.” (Robison Decl., ¶ 2.) Plaintiff’s counsel asserts that “Plaintiff recently obtained
information from the prior Sublessor, Carmanita Corporation, which Plaintiff
did not know existed until late March, 2024. This information was as to the
Defendant’s delinquency in the payment of rent to Carmanita Corporation prior
to the date Plaintiff foreclosed upon Carmanita Corporation. This discovery and
proof of this fact changes the legal consequences regarding Defendant’s
sublease and creates greater damages that can be alleged by Plaintiff that were
not legally nor statutorily available to Plaintiff within the unlawful detainer
cause of action and the Complaint - Unlawful Detainer.” (Robison Decl., ¶ 3.)
Plaintiff’s counsel states that “Plaintiff now seeks leave of court to
file a First Amended Complaint to seek damages against the Defendant based upon
Plaintiff’s foreclosure and Trustee’s Deed against Carmanita Corporation. These
damages could be not be claimed nor alleged in an unlawful detainer Complaint.”
(Robison Decl., ¶ 4.)
In the opposition,
Defendant asserts that “allowing Plaintiff to amend the Complaint will
prejudice Defendant.” (Opp’n at p. 1:23.) Defendant notes that the proposed FAC
alleges that “Defendant, OK KYNG YIM DBA DOO ME SAN GOL, vacated the
subject commercial premises on September 8, 2023…” (Robison Decl., ¶ 4, Ex. 1, ¶ 10.) Defendant asserts that it “vacated
the subject premises on or about September 8, 2023…Yet, Plaintiff did not file
the instant Motion until April 22, 2024, over 7 months later. Plaintiff’s delay
in seeking relief will prejudice Defendant as trial is presently scheduled for
November 13, 2024. As such, Defendant will have limited time to conduct the
necessary discovery to prepare for trial and/or for summary judgment.” (Opp’n
at p. 2:6-11.) However, the Court finds any asserted prejudice to Defendant may be alleviated by a trial continuance.
Based
on the foregoing, the Court finds that Plaintiff has demonstrated good cause
for leave to file the proposed FAC.
Conclusion
Based on the foregoing, Plaintiff’s motion for leave to
file a First Amended Complaint is granted. The Court orders Plaintiff to file the
proposed First Amended Complaint within 3 days of the date of this Order.¿Plaintiff shall serve Defendant with the proposed First Amended Complaint in accordance with Civil Code section 1952.3,
subdivision (a)(1).
The Court continues trial to _____________, at 1:30 p.m.,
in Dept. 50.¿ The Final Status Conference is
continued to __________ at 2 p.m. in Dept. 50.
The date for filing the trial readiness and exhibit binders is continued
to ________ by 4 p.m. in Dept. 50.
All discovery deadlines are continued based on the new
trial date.¿¿
Plaintiff is ordered to give notice of this Order.¿
DATED:
Hon. Teresa A.
Beaudet
Judge, Los
Angeles Superior Court
[1]The proposed FAC
alleges that “Plaintiff, RAMONA MAINE LP DBA RODEO GALLERIA, is the authorized
management agent for 841 Family Limited Partnership.” (Robison Decl., ¶ 4, Ex. 1, ¶ 5.)