Judge Theresa M. Traber, Case 20STCP04198 2022-09-29 Tentative Ruling

Judge: Theresa M. Traber, Case: 20STCP04198, Date: 2022-09-29 Tentative Ruling

Case Number: 20STCP04198 Hearing Date: September 29, 2022 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: September 29, 2022 TRIAL DATE: NOT SET

CASE: Long Z. Liu v. City of Baldwin Park, et al.

CASE NO.: 20STCP04198

MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT

MOVING PARTY: Plaintiff Long Z. Liu

RESPONDING PARTY(S): City of Baldwin Park, erroneously sued as Baldwin Park Police Department and Baldwin Park City Hall

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This was a petition for writ of mandamus filed on December 20, 2020. Plaintiff alleges that Defendants engaged in a criminal conspiracy to illegally tow vehicles and force their owners to pay extortionate fees to retrieve the vehicles from impoundment. Plaintiff alleges that he was personally injured and his civil rights violated when his vehicle was allegedly unlawfully towed.

Plaintiff moves for leave to file a first amended complaint.

TENTATIVE RULING:

Plaintiff’s Motion for Leave to File a First Amended Complaint is DENIED WITHOUT PREJUDICE.

Plaintiff is ordered to refile this motion within 20 days of the date of this order, correcting the procedural deficiencies identified herein and excising the CPRA cause of action. Further leave to amend will not be granted if Plaintiff fails to comply with this order.

DISCUSSION:

Plaintiff seeks leave to file a first amended complaint to add a series of entirely new claims in lieu of his previous petition for writ of mandate.

Timeliness of Filing

In the Court’s July 20, 2022 ruling on Defendant’s Demurrer and Motion to Strike the original amended complaint, the Court ordered the parties to meet and confer regarding the filing of an amended complaint and the issues raised in the demurrer and motion to strike on or before August 9, 2022. (July 20, 2022 Minute Order.) If the parties were unable to resolve this dispute, Plaintiff was ordered to file this motion by August 19, 2022. (Id.) However, in the Court’s July 28, 2022 Minute Order following an Informal Discovery Conference, the Court ordered Plaintiff to either submit a stipulation and order regarding the filing of a First Amended Complaint or file this motion by August 17, 2022. (July 28, 2022 Minute Order.)

Plaintiff filed this motion on August 18, 2022, and is therefore untimely pursuant to the Court’s July 28, 2022 order. Defendant has objected in its opposition to this motion on this basis. Plaintiff offers no explanation for the untimely filing in its moving papers. In Plaintiff’s reply papers, Plaintiff contends that the motion was initially filed timely, but rejected by the Court Clerk’s office due to clerical errors on the morning of August 18, which were immediately corrected. Plaintiff does not support this assertion with a verified declaration from its counsel regarding the untimely filing. However, as the motion was only one day late, the Court will overlook the late filing in light of the strong presumption in favor of permitting leave to amend, and will consider the motion on its merits.

Irrelevant Exhibits

Attached to the Declaration of David Lopez is a set of 29 exhibits, none of which are identified or authenticated by the Declaration aside from a general statement that the exhibits “are what they purport to be.” (Declaration of David Lopez ISO Mot. ¶ 2.) With the exception of Exhibit A, which is evidently the proposed First Amended Complaint, none of the other exhibits appear to have any bearing on this motion, and no reference is made to them in any of Plaintiff’s moving papers.

Defendant contends that these exhibits are being offered in order to harass Defendant and prejudice the Court against Defendant by publicizing “false and misleading information.” Defendant requests that the Court admonish Plaintiff and Plaintiff’s counsel, deny the motion, and set a date for hearing of Defendant’s motion for sanctions, or, alternatively, to dismiss the case in its entirety. An opposition to a motion for leave to amend is not the proper venue to bring these requests, and if Defendant seeks such relief, Defendant is at liberty to pursue this goal through a regularly noticed motion per code. The Court declines to address this matter further here, except to admonish Plaintiff and Plaintiff’s counsel that the inclusion of over two dozen irrelevant and improperly authenticated exhibits in a motion for leave to amend is entirely inappropriate. In the future, Plaintiff and Plaintiff’s counsel should restrict themselves to including only evidence which is relevant to the instant motion.

Legal Standard

The Court may, “at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, . . . allow the amendment of any pleading.” (Code Civ. Proc. § 576.) A motion to amend a pleading before trial must meet the following requirements:

(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.

(CRC 3.1324.)

Contents of Motion

Plaintiff included a copy of the proposed first amended complaint with the attached Declaration of David Lopez. (Lopez Decl. Exh. A.) Plaintiff has therefore complied with California Rule of Court 3.1324(a)(1).

Plaintiff’s motion does not indicate which allegations are proposed to be added or deleted by page, paragraph, and line number, as required by California Rule of Court 3.1324(a)(2) and (a)(3). Plaintiff contends that both a clean and strikethrough copy of the proposed amended pleading are attached to the motion. However, Exhibit A does not contain a strikethrough copy of the proposed Amended Complaint. (Lopez Decl. Exh. A.) The included Appendix of Proposed Changes appears to be an attempt to substantially comply with this requirement by identifying which causes of action are being added or removed. However, the Appendix appears to be addressing changes to the proposed First Amended Complaint in relation to the previous First Amended Complaint stricken by the Court on July 20, 2022, rather than in relation to the operative Petition in this action. Further, the changes identified in the Appendix of Proposed Changes are not clearly identifiable in the exhibit itself. Under these circumstances, the Court cannot easily determine what has been added, removed, or changed relative to the operative pleading in this matter. Plaintiff has not complied with California Rules of Court 3.1324(a)(2) and (a)(3).

The Court therefore finds that Plaintiff has not complied with the requirements for the motion itself. For this reason alone, the Court would be empowered to deny the motion. However, the Court will also address the contents of the supporting declaration and Defendant’s objections in opposition.

Supporting Declaration

The Declaration of David Lopez makes no effort to comply with any of the substantive requirements of a supporting declaration in connection with a motion for leave to amend. Even considering the body of Plaintiff’s motion in the context of these requirements, the moving papers are gravely deficient. The motion states that the proposed amendments fall into five categories: (1) non-substantive clerical corrections; (2) removal of the third and seventh cause of action brought on behalf of Xiaoping Chi; (3) removal of the sixth cause of action brought on behalf of Josephine Zhang Liu; (4) addition of new causes of action based on facts already pleaded; and (5) additions to Plaintiffs prayer based on the newly proposed causes of action. As stated above, this assessment is not sufficient because it fails to address additions, deletions, and changes relative to the operative pleading, instead orienting itself relative to the stricken amended complaint. Therefore, the Court cannot say that Plaintiff has substantially complied with Rule 3.1324(b)(1) by clearly stating the effect of all of the proposed amendments.

No part of Plaintiff’s moving papers states why the new amendments are necessary and proper. The Court is of course aware that this motion was filed pursuant to the order of the Court, but a procedurally compliant declaration would explain why Plaintiff sought to alter the course of this action from a petition for writ of mandate into an action for damages. Plaintiff offers no such explanation. Plaintiff has not complied with the requirements of Rule of Court 3.1324(b)(2).

Plaintiff offers no explanation as to when the facts giving rise to the amended allegations were discovered, as required by California Rule of Court 3.1324(b)(3). Nor does Plaintiff explain why the request for amendment was not made earlier, as required by Rule 3.1324(b)(4). The Court is, once again, aware that this motion was filed pursuant to this Court’s order, but a procedurally sound motion would offer an explanation for why no motion was made previously. It is extremely unlikely that the Court would deny leave to amend on the basis of the explanation provided, in light of the broad presumption in favor of permitting leave to amend and the Court’s order to file this motion, but the Court cannot overlook a total failure to observe the California Rules of Court.

Plaintiff has not complied with the procedural requirements for a supporting declaration, even considering the entirety of Plaintiff’s moving papers. For this reason alone, the Court would be empowered to deny the motion. However, the Court will also address the Defendant’s objections in opposition.

Defendant’s Objections

Defendant opposes Plaintiff’s motion on the grounds of the failure to properly identify the proposed amendments, as addressed above, on the grounds that the proposed amended complaint is a sham pleading, that the complaint is duplicative, and that Plaintiff has failed to allege facts sufficient to support the claimed causes of action.

1. Sham Pleading

Defendant opposes Plaintiff’s proposed California Public Records Act claim on the basis that it is a sham pleading. Under the sham pleading doctrine, a plaintiff cannot attempt to cure a defect in a complaint by pleading facts or positions in an amended complaint that contradict the facts pled in the original or by suppressing facts that prove the pled facts false, without explanation. (JPMorgan Chase Bank, N.A. v Ward (2019)

33 Cal.App.5th 678, 690.) Defendant contends that Plaintiff admitted before the Court that there was no California Public Records Act claim on June 10, 2021. (See June 10, 2021 Minute Order.) In reply, Plaintiff argues that this is not the case, because the operative pleading is the original complaint maintaining the CPRA claims. In the Court’s view, whether or not the proposed amended complaint is a sham pleading in this respect, Plaintiff’s CPRA claim is barred under the doctrine of judicial estoppel.

Judicial estoppel applies when “(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake. (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183.) Here, Plaintiff successfully asserted that Plaintiff had no viable CPRA claim, as stated in the June 10, 2021 minute order, and secured a transfer to an independent calendar court to pursue an action for damages. Now, Plaintiff seeks to revive that cause of action, with no indication that the previous position was the result of ignorance, fraud, or mistake. The doctrine of judicial estoppel therefore bars Plaintiff from reasserting that position.

2. Duplicative Pleadings

Defendant also opposes the proposed first amended complaint on the grounds that Plaintiff has named Baldwin Park City Hall, Baldwin Park Police Department, and the City of Baldwin Park as Defendants. Defendant states that the BPPD is a department within the government of the City of Baldwin Park, and thus are the same party, and City Hall is a building rather than a discrete party. It is evident from the face of the proposed amended pleading that Plaintiff intends City Hall to mean, as Defendant suggests, the decision-making body of the City of Baldwin Park. Plaintiff does not address these contentions in reply. The Court agrees with Defendant that the proposed amended complaint is unnecessarily duplicative in this respect. A properly pled complaint need not and should not allege claims against the City of Baldwin Park, the Baldwin Park Police Department, and Baldwin Park City Hall, as all three are the same party.

3. Failure to State Facts Sufficient to Constitute a Cause of Action

Defendant also attacks the proposed amended complaint on the grounds that each of the proposed causes of action fails to state facts sufficient to constitute a cause of action.

The Court’s discretion to allow amendments to the pleadings “should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047.) Ordinarily, the court will not consider the validity of the proposed amended pleading in ruling on a motion for leave since grounds for a demurrer or motion to strike are premature. The court, however, does have discretion to deny leave to amend where a proposed amendment fails to state a valid cause of action as a matter of law and the defect cannot be cured by further amendment. (See California Casualty General Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 281 (overruled on other grounds by Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390).)

Defendant asserts numerous reasons why the proposed amendments fail to state facts sufficient to constitute a cause of action, including failure to allege compliance with the California Tort Claims Act, failure to allege facts sufficient to trigger liability under 42 U.S.C. § 1983, immunity under Government Code section 820.2, lack of standing, and inadequacy of the pleadings with respect to the Bane Act. With the exception of the CPRA claim discussed above, Defendant does not state with specificity and detail how the claims are defective in this respect, or why further amendment would be futile. Instead, Defendant merely offers conclusory assertions that Plaintiff’s claims are barred or otherwise inadequately pled and cannot be cured by further amendment. In light of the broad presumption in favor of permitting leave to amend, the presumption against ruling on the validity of a claim in considering a motion for leave to amend, and the existing procedural defects in the instant motion, the Court declines to rule on the merits of Plaintiff’s other causes of action at this time.

Conclusion

Although there is a strong presumption in favor of permitting leave to amend, that presumption is not absolute. Here, Plaintiff’s motion is substantially defective and noncompliant with the Rules of Court and the proposed amended complaint states a cause of action that is deficient as a matter of law. The Court cannot permit leave to amend on the basis of such a defective motion. Instead, the Court will exercise its discretion to permit Plaintiff to refile this motion once more, correcting the procedural deficiencies identified herein and excising the CPRA cause of action. Plaintiff is admonished that further leave to amend will not be granted if Plaintiff fails to comply with this order a second time.

CONCLUSION:

Accordingly, Plaintiff’s Motion for Leave to File a First Amended Complaint is DENIED WITHOUT PREJUDICE.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: September 29, 2022 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.