Judge: Teresa A. Beaudet, Case: BC708790, Date: 2023-03-22 Tentative Ruling

Case Number: BC708790    Hearing Date: March 22, 2023    Dept: 50



Superior Court of California

County of Los Angeles

Department 50







Case No.:


Hearing Date:

March 22, 2023

Hearing Time:

10:00 a.m.








On June 5, 2018, Plaintiff Sarah E. Birch (“Birch”) filed this action against Defendants James M. Edwards, Jr. and Xceed Financial Credit Union. The Complaint asserts one cause of action for the partition and sale of real property.

            In the Complaint, Birch alleges that she and James M. Edwards, Jr. are each the owners of a fifty percent interest in certain real property located at 837 Crescent Drive, Monrovia, California (the “Subject Property”). (Compl., ¶ 7.) Plaintiff alleges that Xceed is the holder of certain liens on the Subject Property. (Compl., ¶¶ 8-9.) In the Complaint, Plaintiff seeks, inter alia, a partition by sale of the Subject Property. (Compl., p. 3:18.)

            On February 22, 2022, James M. Edwards (“Edwards”) filed a Cross-Complaint against Birch, asserting causes of action for (1) breach of written contract, and (2) specific performance.

Edwards now moves for an order granting leave to file a First Amended Cross-Complaint. Birch filed a notice indicating that she does not oppose the instant motion. 


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. Sup. Ct. (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 supporting declaration specifying the effect of the amendment, why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and the reason why the request for amendment was not made earlier must also accompany the motion. (Cal. Rules of Court, rule 3.134, subd. (b).)

Edwards submits a declaration from his counsel that attaches a copy of the proposed First-Amended Cross-Complaint. (Gentile Decl., ¶ 8, Ex. A.) Edwards seeks to add additional causes of action for breach of written contract and specific performance. (Ibid.)

Edwards states that the proposed new second cause of action for breach of written contract adds a new legal theory but no new factual allegations. (Gentile Decl., ¶ 8(c).) Edwards indicates that the new theory seeks damages based upon breach of a written agreement which consists of several documents, including but not limited to the Settlement Agreement alleged in the first cause of action. (Gentile Decl., ¶ 8(c).) The proposed new fourth cause of for specific performance was added as Edwards desires to specifically enforce the agreement alleged in the new second cause of action. (Gentile Decl., ¶ 8(d).) In addition, the prayer for relief was amended to reflect the new causes of action. (Gentile Decl., ¶ 8(e).)

Edwards indicates that on November 8, 2022, Birch filed a motion for summary judgment as to the two causes of action contained in Edwards’s operative Cross-Complaint. (Gentile Decl., ¶ 2.) The motion was denied. However, on February 14, 2023, Edwards’s counsel and Birch’s counsel had a telephone discussion regarding Birch’s evidentiary objections to the evidence submitted by Edwards in opposition to Birch’s motion for summary judgment. (Gentile Decl., ¶¶ 3-5.) During such conversation, Birch’s counsel stated that in his opinion, since the Settlement Agreement was the agreement sued upon, escrow instructions and other documents were not relevant to the agreement and hence their admissibility lacked foundation. (Gentile Decl., ¶ 5.) Edwards’s counsel states that this is the first time he learned that there was an argument being advanced by Birch that the transaction documents were not part of the agreement sued upon in the Cross-Complaint. (Gentile Decl., ¶ 5.) 

            Edwards’s proposed new second cause of action for breach of written contract alleges, inter alia, that “Cross-Defendant…did in fact proceed with the terms of the Settlement Agreement by requesting in writing that an escrow be opened for the sale transaction, by thereafter, and on several occasions, depositing written escrow instructions with the escrow holder, by depositing a written payoff demand to the escrow holder, by delivering an executed and notarized deed to the escrow holder conveying her interest in the Subject Property upon payment of the sum of $100,000 and by delivering to the escrow holder, a written and recordable Notice of Withdrawal of Lis Pendens which she recorded against the Subject Property as part of the litigation.” (Gentile Decl., ¶ 8, Ex. A, ¶ 18.) The proposed second cause of action also alleges that “[o]n September 23, 2021, Cross-defendant further acknowledged in writing: ‘We agreed that my client would receive 100k by September 30th. Otherwise, trial and my client is guaranteed an amount even if she does not prevail…September 30th is approaching.’” (Gentile Decl., ¶ 8, Ex. A, ¶ 19, emphasis omitted.) The proposed second cause of action alleges that “[t]he above referenced writings, including the Settlement Agreement, collectively, are sufficient to comply with the provisions of Civil Code, Section 1624, supra in that they clearly show that the parties entered into a contract for the sale and purchase of Cross-defendant’s interest in the Subject Property for the sum of $100,000 as well as other essential terms of the parties’ agreement.” (Gentile Decl., ¶ 8, Ex. A, ¶ 20, emphasis omitted.)

Based on the foregoing, and light of Birch’s nonopposition, the Court finds that Edwards has demonstrated good cause to file the proposed First Amended Cross-Complaint.   


Based on the foregoing, Edwards’s motion is granted.

The Court orders Edwards to file and serve his First Amended Cross-Complaint within three days of the date of this order.

Edwards is ordered to give notice of this order.


DATED:  March 22, 2023                              ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court