Judge: Virginia Keeny, Case: 19VECV01307, Date: 2022-09-27 Tentative Ruling

Case Number: 19VECV01307    Hearing Date: September 27, 2022    Dept: W

ELIZABETH HARANDI v. LINDA HOUSE, ET AL.

MOTION for leave to amend complaint to add fifth cause of action

Date of Hearing:          September 27, 2022               Trial Date:       November 28, 2022

Department:               W                                             Case No.:         19VECV01307

Moving Party:             Plaintiff, Elizabeth Handy

Responding Party:       None.

BACKGROUND

This is a professional malpractice action. Elizabeth Harandi (“Plaintiff”) alleges that she hired Defendants Linda House, Law Offices of Galindo & Fox, A Professional Corporation, Galindo and Fox, a Partnership and Marcia Galindo (collectively, “Defendants”) to represent Plaintiff in a Dissolution of Marriage.  Plaintiff alleges that over the course of the representation, Defendants committed a multitude of negligent acts including: failing to file a "Keech Declaration" which caused Plaintiff's motion to be ineligible for attorney's fees, failing to inform Plaintiff how to report her income to the court which caused the court to make inaccurate and detrimental decisions concerning Plaintiff's finances, failing to inform Plaintiff with required promptness of developments in her case, among many other alleged negligent acts.

On September 12, 2019, Plaintiff initiated the present action by filing a Complaint against Defendants Linda House, Galindo & Fox, a Partnership, Marcia Galindo, and Does 1 through 20.  Plaintiff’s Complaint alleged the following causes of action: (1) Professional Malpractice; (2) Breach of Fiduciary Duty; and (3) Breach of Contract.

On December 9, 2019, Defendant Linda House filed a Demurrer against Plaintiff’s Complaint.  Subsequently, on February 7, 2020, Defendant’s Demurrer was overruled with respect to Plaintiff’s First Cause of Action for Professional Malpractice, and Plaintiff’s Second Cause of Action for Breach of Fiduciary Duty.  Defendant’s Demurrer was sustained, with leave to amend, with respect to Plaintiff’s Third Cause of Action for Breach of Contract.

On March 10, 2020, Plaintiff filed a First Amended Complaint against Defendants Linda House, Galindo & Fox, a Partnership, Marcia Galindo, and a newly named-defendant, Law Offices of Galindo & Fox, a Professional Corporation.  Plaintiff’s First Amended Complaint alleged the following causes of action: (1) Professional Malpractice; (2) Breach of Fiduciary Duty; and (3) Breach of Contract.

On September 23 and 24, 2020, respectively, Defendant Linda House filed a Demurrer and Motion to Strike against Plaintiff’s First Amended Complaint.  Subsequently, on October 16, 2020, Defendant’s Demurrer was sustained with respect to Plaintiff’s Third Cause of Action for Breach of Contract, without leave to amend.  Defendant’s Motion to Strike Plaintiff’s First and Second Causes of Action was denied.

On November 4, 2020, Defendant Linda House filed a Demurrer against Plaintiff’s First and Second Causes of Action, as alleged within Plaintiff’s First Amended Complaint.  Subsequently, on January 25, 2021, Defendant’s Demurrer was overruled with respect to Plaintiff’s First Cause of Action for Professional Malpractice.  Defendant’s Demurrer was sustained, with leave to amend, with respect to Plaintiff’s Second Cause of Action for Breach of Fiduciary Duty.

On February 16, 2021, Plaintiff filed a Second Amended Complaint against Defendants Linda House, Galindo & Fox, a Partnership, Marcia Galindo, and Law Offices of Galindo & Fox, a Professional Corporation.  Plaintiff’s First Amended Complaint alleged the following causes of action: (1) Professional Malpractice; (2) Breach of Fiduciary Duty; and (3) Breach of Contract.

On March 9, 2021, Plaintiff dismissed Defendant Linda House from the action.

On January 3, 2022, Plaintiff obtained entry of default against Defendant Law Offices of Galindo & Fox, a Professional Corporation.

On January 6, 2022, Plaintiff filed an “Amendment to Complaint (Fictitious/Incorrect Name”) and substituted Defendant Jessica Thomas as Doe 3.

On February 28, 2022, Plaintiff filed a Motion for Leave to Amend Complaint to Substitute New Party as Successor-In-Interest to Named Party Defendant.  Pursuant to Plaintiff’s Motion, Plaintiff sought to amend the operative Second Amended Complaint by adding a new cause of action for Declaratory Relief against newly-added Defendant Jessica Thomas, who is the granddaughter of now-deceased Defendant Marcia Galindo.  Subsequently, on March 28, 2022, Plaintiff’s Motion was granted, and Plaintiff was ordered to file a Third Amended Complaint within one week.

On March 29, 2022, Plaintiff filed the operative Third Amended Complaint against Defendants Galindo & Fox, a Partnership, Marcia Galindo, Law Offices of Galindo & Fox, a Professional Corporation, Jessica Thomas, and Does 1 through 18.  Plaintiff’s operative Third Amended Complaint alleges the following causes of action: (1) Legal Malpractice; (2) Professional Negligence; (3) Breach of Fiduciary Duty; and (4) Declaratory Relief.

On April 4, 2022, Defendant Jessica Thomas filed a Demurrer against Plaintiff’s Third Amended Complaint.  Subsequently, on May 3, 2022, Defendant Jessica Thomas’ Demurrer was sustained, with leave to amend, as to Plaintiff’s Fourth Cause of Action for Declaratory Relief.

On August 5, 2022, Kurt Zimmerman, Esq. filed two Motions to Be Relieved as Counsel for Defendants Marcia Galindo and Galindo & Fox, a Partnership.

On August 16, 2022, Plaintiff filed the present Motion for Leave to Amend Complaint to Add Fifth Cause of Action.  Plaintiff’s Proof of Service provides service was made with respect to the Motion upon Defendant Jessica Thomas (served upon counsel Adam Dolce, Esq.), and Defendants Marcia Galindo and Galindo & Fox, a Partnership (served upon counsel Kurt Zimmerman, Esq.).  (Proof of Service, filed August 16, 2022.)

On September 1, 2022, Kurt Zimmerman, Esq.’s Motion to Be Relieved as Counsel for Defendant Marcia Galindo was granted.  Subsequently, on September 2, 2022, Kurt Zimmerman, Esq.’s Motion to Be Relieved as Counsel for Defendant Galindo & Fox, a Partnership was granted.  Kurt Zimmerman, Esq. has not yet filed Proofs of Service, which would trigger the effectiveness of the Court’s ruling.

[Tentative] Ruling

Plaintiff’s Motion for Leave to Amend Complaint to Add Fifth Cause of Action is GRANTED.

LEGAL STANDARD

Code of Civil Procedure section 473, subdivision (a) provides: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer.  The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.”  (Code Civ. Proc., § 473, subd. (a)(1); see Code Civ. Proc., § 576.) 

Permissible amendments pursuant to Code of Civil Procedure section 473, subdivision (a) include amendments which add causes of action.  A plaintiff that fails to plead a cause of action arising out of the transaction or occurrence that gave rise to the complaint may apply to the court for leave to amend the complaint to assert the cause of action, whether that failure was the result of oversight, inadvertence, mistake, neglect, or other cause.  (Code Civ. Proc., § 426.50; see Code Civ. Proc., § 426.10, subd. (c); see also Cal. Judges Benchbook: Civil Proceedings Before Trial (March 2022 Update) Motion for Leave to File Amended or Supplemental Pleading, § 12.176.)  The motion to amend may be filed at any time during the course of the action, on notice to the adverse party.  (Id., § 426.50.)

The court has broad discretion to permit amendments to pleadings, and “the court’s discretion will usually be exercised liberally to permit amendment of the pleadings.”  (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.)  “The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified.”  (Ibid.)  “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. Superior Court (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.  (Cal. Rules of Court, Rule 3.1324, subd. (a)(1).)  A motion to amend a pleading must also be supported by a declaration which specifies the following: (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, subd. (b).)

ANALYSIS

Plaintiff moves for an Order granting leave to amend the operative Third Amended Complaint for the purposes of adding a single cause of action for “Fraud” against Defendants Law Offices of Galindo & Fox, a Professional Corporation, Galindo & Fox, a Partnership, and Jessica Thomas, as Successor-In-Interest to Marcia Galindo, pursuant to Code of Civil Procedure section 473, subdivision (a).  (Code Civ. Proc., § 473, subd. (a).) 

Procedural Requirements within California Rules of Court, Rule 3.1324

Preliminarily, the Court finds Plaintiff has sufficiently complied with the various procedural requirements outlined within California Rules of Court, Rule 3.1324 (“Rule 3.1324”).  (Cal. Rules of Court, Rule 3.1324.)  Initially, as enumerated within subdivision (a) of Rule 3.1324, Plaintiff has properly included a copy of the proposed Fourth Amended Complaint with the present Motion, and has specified the allegations which Plaintiff proposes to be added to the previous Third Amended Complaint.  (Id., Rule 3.1324, subd. (a)(1), (a)(2).)  Further, as required within subdivision (b) of Rule 3.1324, Plaintiff has filed a Supporting Declaration which specifies the effect of the amendment, why the amendment is necessary and proper, when Plaintiff discovered the facts giving rise to the proposed amendment, and the reason why amendment was not requested earlier.  (Harandi Decl., ¶¶ 11, 14, 16.)  Specifically, Plaintiff’s Supporting Declaration provides as follows: (1) the effect of the proposed amendment would be to add a Fifth Cause of Action for “Fraud” against Defendants Law Offices of Galindo & Fox, a Professional Corporation, Galindo & Fox, a Partnership, and Jessica Thomas, as Successor-In-Interest to Marcia Galindo (id., ¶ 16); (2) the amendment is necessary and proper to allow Plaintiff to litigate all claims against Defendants in a single action, as opposed to requiring Plaintiff to seek relief in a separate, albeit related action (Mot., at p. 4:13-20.); (3) During the course of discovery in this action, Plaintiff discovered that Defendants concealed certain facts during the inception of the attorney-client relationship, which will serve as the basis for Plaintiff’s proposed Fifth Cause of Action for “Fraud” (id. ¶¶ 11, 16); and (4) Plaintiff did not request to add the proposed Fifth Cause of Action for “Fraud” at an earlier time considering the purported concealment was only discovered recently during the course of discovery (ibid.). 

Considering the facts and circumstances attested to throughout Plaintiff’s Motion and Plaintiff’s Supporting Declaration, the Court finds Plaintiff has sufficiently complied with the procedural requirements outlined within California Rules of Court, Rule 3.1324.  (Cal. Rules of Court, Rule 3.1324.)

Substantive Showing Required under Code of Civil Procedure Section 473(a)

Following review of Plaintiff’s moving arguments, the Court finds Plaintiff has sufficiently demonstrated an entitlement to relief requested pursuant to Code of Civil Procedure section 473, subdivision (a). 

First, the Court finds that Plaintiff’s request to amend the operative Third Amended Complaint is timely pursuant to the relevant provisions of the Code of Civil Procedure.  (Code Civ. Proc., §§ 473, subd. (a), 426.50 [a party who failed to plead a cause of action may bring a motion to amend complaint “at any time during the course of the action”].)  Plaintiff attests that she did not learn of the facts giving rise to the proposed Fifth Cause of Action for “Fraud” until recently, during the course of discovery in this action, and, subsequently, brought the present Motion in a swift manner, approximately four (4) months prior to the trial date.  (Harandi Decl., ¶ 11.) 

Second, the Court finds that Plaintiff’s proposed amendment, which includes the addition of a single cause of action for “Fraud”, constitutes a permissible amendment under Code of Civil Procedure section 473, subdivision (a).  Plaintiff’s additional, proposed cause of action arises from the same transaction and occurrence which is central to the present action—namely, Defendants’ commission of profession malpractice in connection with Defendants’ representation of Plaintiff during a Dissolution of Marriage.  (Harandi Decl., ¶ 16.)  Such an amendment is permissible under Code of Civil Procedure section 473, subdivision (a).  (Code Civ. Proc., §§ 473, subd. (a)(1) [“The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars”], 426.50 [stating, a plaintiff that fails to plead a cause of action arising out of the transaction or occurrence that gave rise to the cause of action alleged in the complaint may apply to the court for leave to amend the complaint, whether the failure was the result of oversight, inadvertence, mistake, neglect, or other cause].)

Lastly, the Court finds Defendants have failed to demonstrate that they will suffer concrete prejudice as a result of the proposed amendment.  Initially, the Court recognizes that, despite being served with the present Motion, Defendants have failed to file any Opposition to the same.  Further, trial in the present case is not scheduled for another two (2) months, and the parties are currently engaged in discovery.  The parties may foreseeably conduct additional discovery concerning the single, additional cause of action prior to the impending trial date. 

Accordingly, based upon the foregoing, the Court finds Plaintiff has sufficiently demonstrated an entitlement to the relief requested pursuant to Code of Civil Procedure section 473, subdivision (a).  (Code Civ. Proc., § 473, subd. (a).)

CONCLUSION

Plaintiff’s Motion for Leave to Amend Complaint to Add Fifth Cause of Action is GRANTED.  Plaintiff is ordered to file and serve the proposed Fourth Amended Complaint within five days.