Judge: Theresa M. Traber, Case: 23STCV17471, Date: 2024-05-16 Tentative Ruling

Case Number: 23STCV17471    Hearing Date: May 16, 2024    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     May 16, 2024             TRIAL DATE: NOT SET

CASE:                         Ahnal Criego Brown v. Nationstar Mortgage LLC, et al.

CASE NO.:                 23STCV17471           

MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT

MOVING PARTY:               Plaintiff Ahnal Criego Brown

RESPONDING PARTY(S): Defendant Nationstar Mortgage, LLC

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is a wrongful foreclosure action that was filed on July 25, 2023. Plaintiff alleges that Defendants foreclosed on Plaintiff’s home without reviewing her loss mitigation applications or contacting her before recording the Notice of Default.  

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. This ruling is without prejudice to a procedurally proper motion for leave to file an amended or supplemental complaint.

DISCUSSION:

Plaintiff moves for leave to file a First Amended Complaint.

Procedural Posture of Motion

            Plaintiff’s motion seeks to amend the Complaint to add numerous allegations concerning events which post-date the filing of the original Complaint. As Defendant argues in opposition, although the motion is noticed as a motion for leave to amend the Complaint under Code of Civil Procedure section 473, allegations concerning conduct past the date of the original pleading are more properly brought in a supplemental Complaint under Code of Civil Procedure section 464. This section provides, in relevant part, that “the plaintiff and defendant, respectively, may be allowed, on motion, to make a supplemental complaint or answer, alleging facts material to the case occurring after the former complaint or answer.” (Code Civ. Proc. § 464(a).) A motion to file a supplemental pleading under section 464 is subject to the “sound legal discretion” of the Court, much like a motion to amend a pleading. (Flood v. Simpson (1975) 45 Cal.App.3d 644, 647.) A supplemental pleading cannot, however, allege “new” causes of action or defenses. The purpose of supplementing a complaint is not to seek a new cause of action, but to address later instances of the same conduct. (Jaffa v. Guttman (1959) 175 Cal.App.2d 790, 798.)

            Here, the First Amended/Supplemental Complaint seeks to add only factual allegations concerning Defendant’s failure to consider a further loss mitigation application, asserting only the same four causes of action brought in the initial Complaint. Were this the only defect, the Court would find Plaintiff’s failure to identify section 464 rather than section 473 in her motion as harmless error, as the statutes impose identical standards in this context. However, as discussed below, Plaintiff’s motion contains numerous other procedural deficiencies that warrant denial of the motion.

Legal Standard For Supplemental Complaint

            As with a motion to amend a pleading, a motion to supplement a pleading must comply with California Rule of Court 3.1324(b). (Weil & Brown, Cal. Prac. Guide Civ. Pro. Before Trial (The Rutter Group 2021) § 6:812, p. 6-E.)

(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 3.1324.)

Contents of Motion

            Plaintiff has included, with her motion, a copy of the proposed First Amended/Supplemental Complaint, as required by Rule 3.1324(a)(1). Plaintiff does not, however, expressly identify the proposed amendments or supplemental allegations by page, paragraph, and line number, as required by subdivisions (a)(2) and (a)(3).) Plaintiff has therefore failed to comply with Rule 3.1324(a).

Supporting Declaration

            The Declaration of Safora Nowrouzi, counsel for Plaintiff, does not describe the effect of the proposed amendments except to state that they are intended to include allegations that occurred after the filing of the original Complaint and relate them to the ongoing wrongs that form the basis of Plaintiff’s causes of action. (Declaration of Safora Nowrouzi ISO Mot. ¶ 19.) While this statement, broadly speaking, provides some indication of why the amendments are necessary and proper under subdivision (b)(2), it does not describe their full effect under subdivision (b)(1). Moreover, since Plaintiff’s papers do not expressly identify which allegations are being added, Attorney Nowrouzi’s explanation of the procedural history of this case after the Complaint was filed (Nowrouzi Decl. ¶¶ 7-17) does not permit the Court to determine when the facts giving rise to the new allegations were discovered, or why amendment was not sought sooner, as required under subdivisions (b)(3) and (b)(4). The Court therefore finds that Plaintiff has also failed to comply with Rule 3.1324(b).

            Considering the numerous procedural defects in the motion, the Court is not inclined to grant leave to amend at this juncture. That said, the Court notes that Defendant also opposed this motion on the grounds that the First Amended/Supplemental Complaint is substantively defective. Had Plaintiff filed a procedurally proper motion, the Court would not be inclined to consider these arguments as a valid basis to deny leave to amend. Instead, the Court considers challenges to the merits of a pleading to be more properly brought as a separately noticed motion or demurrer.

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CONCLUSION:

            Accordingly, Plaintiff’s Motion for Leave to File a First Amended Complaint is DENIED. This ruling is without prejudice to a procedurally proper motion for leave to file an amended or supplemental complaint.

            Moving Party is ordered to give notice.

IT IS SO ORDERED.

Dated:  May 16, 2024                         ___________________________________

                                                                                    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.