Judge: Theresa M. Traber, Case: 20STCV07661, Date: 2022-10-11 Tentative Ruling

Case Number: 20STCV07661    Hearing Date: October 11, 2022    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     October 11, 2022                   TRIAL DATE: NOT SET

CASE:                         Shavonne Hunter as Attorney-in-Fact for Grace Elaine Taylor-Barnwell v. Yolanda Brown et al.

CASE NO.:                 20STCV07661           

MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT

MOVING PARTY:               Plaintiff Shavonne Hunter as Attorney-in-Fact for Grace Elaine Taylor-Barnwell

RESPONDING PARTY(S): No response on eCourt as of 10/7/22

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action for fraud, elder abuse, and breach of contract that was filed on February 27, 2020.

Plaintiff Shavonne Hunter 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 shall have 30 days leave from the date of this order to file and serve a procedurally proper Motion for Leave to File a First Amended Complaint.

DISCUSSION:

            Plaintiff moves for leave to file a First Amended Complaint.

            In light of a Probate Court ruling in Case No. 20STPB09183 (In re: Grace Elaine Barnwell Living Trust) that Plaintiff did not have standing, this Court ruled on September 1, 2022 that Plaintiff could file a Motion for Leave to Amend the Complaint to cure the defects as a result of that ruling. Plaintiff has done so, and moves to amend the Complaint to add a cause of action under Code of Civil Procedure section 377.30. This section provides that “[a] cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent’s successor in interest, subject to Chapter 1 (commencing with Section 7000) of Part 1 of Division 7 of the Probate Code, and an action may be commenced by the decedent’s personal representative or, if none, by the decedent’s successor in interest.” (Code Civ. Proc. § 377.30.)

Missing Proof of Service

            Plaintiff has not included a proof of service with the motion. It is not clear whether any Defendant received the motion as there is no opposition or other response on file.  That said, the Court will address the merits of the motion to provide guidance to the parties.   

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.

(Cal. Rules of Court Rule 3.1324.)

Contents of Motion

            Plaintiff did not include a copy of the proposed first amended complaint, and has therefore not complied with Rule of Court 3.1324(a)(1). Nor does Plaintiff indicate what, if any allegations are to be added or deleted by page, paragraph, and line number, as required by Rule 3.1324(a) (2) and (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.

Supporting Declaration

            Plaintiff did not include a supporting declaration with this motion. Even construing the contents of Plaintiff’s motion as attempting substantial compliance with the requirements of Rule 3.1324(b), the papers are insufficient. As Plaintiff has not adequately specified the amendments proposed, Plaintiff has not stated the effects of any proposed amendments, as required by Rule 3.1324(b)(1). Nor does Plaintiff make any attempt to show why the amendments are necessary and proper, when the facts giving rise to the amendments were discovered, or why the request was not made earlier. As the Court instructed Plaintiff to file this motion in light of the Probate Court ruling that established that Plaintiff lacked standing under the causes of action as alleged, had Plaintiff set forth specific proposed amendments to the Complaint, the Court might have been inclined to find substantial compliance since the need for the amendments, the facts giving rise to the amended allegations, and the reasons why the requests were not made earlier all stem from the Court’s September 1, 2022 order. However, because Plaintiff did not set forth specific proposed amendments, the Court finds that Plaintiff has not complied with the requirements of Rule 3.1324(b).

            As Plaintiff has entirely failed to comply with the Rules of Court regarding a Motion for Leave to Amend, the Court finds that leave to amend is not proper on the basis of the motion as filed. However, because the defects in the motion are purely procedural, and thus curable, the Court will exercise its discretion to deny the motion without prejudice and allow Plaintiff to refile and reserve a procedurally compliant Motion for Leave to Amend.

CONCLUSION:

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

Plaintiff shall have 30 days leave from the date of this order to file and serve a procedurally proper Motion for Leave to File a First Amended Complaint.

Court to give notice.

IT IS SO ORDERED.

Dated: October 11, 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.