Judge: Teresa A. Beaudet, Case: BC708790, Date: 2023-03-22 Tentative Ruling
Case Number: BC708790 Hearing Date: March 22, 2023 Dept: 50
SARAH E. BIRCH, Plaintiff, vs. JAMES M. EDWARDS, JR., et al. Defendants. |
Case No.: |
BC708790 |
Hearing Date: |
March 22, 2023 |
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Hearing Time: |
10:00 a.m. |
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[TENTATIVE]
ORDER RE: MOTION FOR ORDER
GRANTING LEAVE TO FILE FIRST AMENDED CROSS-COMPLAINT |
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AND RELATED CROSS-ACTION |
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Background
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.
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. 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.
Conclusion
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:
Hon. Teresa A.
Beaudet
Judge, Los
Angeles Superior Court