Judge: Theresa M. Traber, Case: 20STCV36111, Date: 2022-08-02 Tentative Ruling

Case Number: 20STCV36111    Hearing Date: August 2, 2022    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     August 2, 2022                       TRIAL DATE: NOT SET

CASE:                         Michael Gerami, et al., v. Aloha Roofing, Inc. et al.

CASE NO.:                 20STCV36111           

MOTION FOR LEAVE TO AMEND COMPLAINT

MOVING PARTY:               Plaintiff Michael Gerami

RESPONDING PARTY(S): No response on eCourt as of July 29, 2022

CASE HISTORY:

·         09/22/20: Complaint filed.

·         01/05/21: Cross-Complaint filed by Brentwood Terrace Condominium Association, Inc. as to Aloha Roofing, Inc.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action for negligence and breach of contract. Plaintiff alleges that Defendants were negligent and breached their contractual obligations by persistently failing to fix a roof leak in Plaintiff’s condominium.

Plaintiff moves for leave to file an amended complaint.

TENTATIVE RULING:

Plaintiff’s motion for leave to amend is GRANTED.  Plaintiff is directed to file and serve the proposed First Amended Complaint as a standalone document within 10 days of this order. 

DISCUSSION:

Plaintiff moves for leave to file an amended complaint to add a new named plaintiff, to allege pain and suffering to the new plaintiff from Defendants’ alleged misconduct, and to add additional allegations of negligence that post-dated the original complaint.

Plaintiff moves for leave to file an amended complaint under Code of Civil Procedure section 473(a), which states that the Court may, “in its discretion, after notice to the adverse party, allow, upon such terms as may be just, an amendment to any pleading or proceeding in other particulars.” (Code Civ. Proc. § 473(a).) Ordinarily, such motions are brought under section 576, which states that 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.) However, the plain language of section 473(a) also permits a motion for leave to amend. In either case, 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. Rule of Court Rule 3.1324.)

Contents of Motion

Plaintiff attached a copy of the proposed first amended complaint to the Declaration of Farsheed Shomloo filed with this motion. Plaintiff has complied with California Rule of Court 3.1324(a)(1).

Plaintiff has indicated the proposed additional allegations of negligence after the Complaint was filed by page, paragraph, and line number, as required by California Rule of Court 3.1324(a)(2) and (a)(3). (Notice of Motion, at p. 2.) Plaintiff has also indicated that the phrase “Plaintiff” has been replaced by “Plaintiffs” throughout the proposed First Amended Complaint. (Id.) However, although Plaintiff has indicated that a new Plaintiff is to be added in the caption, Plaintiff does not identify the additional paragraph describing him that is evident from the proposed First Amended Complaint. (Notice of Motion at p. 2, Proposed FAC ¶ 2.) However, as the addition is, as stated, evident on the face of the proposed First Amended Complaint, the Court finds that Plaintiff has substantially complied with the requirements of Rule 3.1324(a)(2) and (a)(3).

Thus, the Court finds that Plaintiff has complied with the requirements for the motion itself.

Supporting Declaration

The Declaration of Attorney Farsheed Shomloo accompanying the motion states that the effects of the proposed amendments are to add Michael Gerami’s son as an additional Plaintiff, to allege the same pain and suffering as to him as his father, and to allege an additional leak and disruption in the Plaintiffs’ lives after the Complaint was filed, to create a “complete picture of the events and the parties who have been affected.” (Shomloo Decl. ¶¶ 2-3.) The Court finds that Defendant has substantially complied with Rule 3.1324(b)(1).

The Declaration does not fully comply with Rule 3.1324(b)(2) because it does not explain why the amendment is necessary and proper. However, the necessity of adding new Plaintiffs whose injuries arise out of the same occurrences and adding new allegations supporting a cause of action that occurred after the original complaint was filed are evident on their face. Accordingly, the Court finds that Plaintiff has substantially complied with Rule 3.1324(b)(2).

The declaration also does not fully explain when the facts giving rise to the amended allegations were discovered, as required by California Rule of Court 3.1324(b)(3). Counsel for Plaintiff states only that he “had not included Miles [Gerami] in the Complaint before because [he] had not realized how much he had suffered from this constant moving in and out of the condominium until my recent conversations with him.”  (Shomloo Decl. ¶ 2.) However, as to the other allegations, as Plaintiff’s counsel states, “there was an additional leak and one more disruption” after the Complaint was filed. (Id.)  The declaration also does not fully explain why the request for amendments was not made earlier, as required by rule 3.1324(b)(4). Although, as stated above, the declaration explains why Miles was not added to the Complaint, it does not explain why, when the leaks have continued through November 2021, as alleged in the proposed Amended Complaint, (Proposed FAC ¶ 25), the motion was only filed and served in April of 2022, five months later. However, considering Defendants’ lack of opposition and the broad presumption in favor of permitting leave to amend, the Court concludes that although the declaration does not fully comply with rule 3.1324(b)(3) and (b)(4), it is substantially compliant.

CONCLUSION:

            Accordingly, Plaintiff’s motion for leave to amend is GRANTED. Plaintiff is directed to file and serve the proposed First Amended Complaint as a standalone document within 10 days of this order. 

            Moving Party to give notice.

IT IS SO ORDERED.

Dated: August 2, 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.