Judge: Virginia Keeny, Case: 22VECV00452, Date: 2023-05-17 Tentative Ruling

Case Number: 22VECV00452    Hearing Date: May 17, 2023    Dept: W

MELINDA BONENE V. ASHKAN DERAKHSHAN

PLAINTIFF MELINDA BONENE’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT

Date of Hearing:        May 17, 2023                                                 Trial Date:       None set. 

Department:              W                                                                    Case No.:        22VECV00452

Moving Party:            Plaintiff Melinda Bonene  

Responding Party:     Defendant Ashkan Derakhsan

BACKGROUND

On March 30, 2022, Plaintiff Melinda Bonene filed a complaint against Defendant Ashkan Derakhsan for breach of contract, intentional misrepresentation, unjust enrichment, defamation – libel, false light, and intentional infliction of emotional distress. Plaintiff alleges she rented a guesthouse at Defendant’s property. Plaintiff alleges Defendant made a series of false representations intended to induce Plaintiff to enter into the lease agreement including that the subject property was 700 square feet, with its own dedicated private yard and a pool table in the private patio. However, Plaintiff later learned when moving into the unit that the 700 square feet was inclusive of a communal space that she could not use alone or without first seeking Defendant's permission. Plaintiff further alleges Defendant also concealed the fact that the "back house" does not have its own mail receptable consistent with United States Postal Service standards and therefore, Defendant would deliver Plaintiff her mail.

Plaintiff moves for leave to file a first amended complaint.

[TENTATIVE] RULING:

Plaintiff Melinda Bonene’s Motion for Leave to File First Amended Complaint is GRANTED.

DISCUSSION

Plaintiff Melinda Bonene moves for leave to file a First Amended Complaint based on the recent discovery of inadvertent clerical errors in preparing the complaint for filing wherein allegations of Defendant’s violation of Civil Code §1950.5 and failure to remove unnecessary paragraphs from pages 10 and 11 of the initial filed complaint necessitate filing a first amended complaint.

California Code of Civil Procedure section 473(a)(1) provides, in relevant part: “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.”¿ 

“This discretion 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).)¿ 

Under California Rules of Court Rule, rule 3.1324, subdivision (a), a motion to amend a pleading shall (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.¿Under California Rule of Court, rule 3.1324, subdivision (b), 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.¿ 

Plaintiff contends the amended complaint consists of non-substantive clerical corrections, i.e., removal of a fragment of the complaint during the drafting stage which by inadvertence and mistake remained within the pleading when filed (See 10-27-28-11:1 and Paragraphs 48, 49, 510. 51 on Page 11); and the inadvertent failure to include defendant’s violation of Civil Code §1950.5. Plaintiff states they took immediate action after identifying the inadvertent clerical errors in the Complaint.

Defendant opposes the motion on the grounds Plaintiff’s counsel neglected to review the complaint for over a year is not good cause to amend the complaint. Defendant contends Plaintiff has not showed good cause to amend the complaint and Defendant will be prejudiced if Plaintiff is allowed to do so.

The court grants Plaintiff’s request for leave to file an amended complaint. As noted above, leave to amend is liberally granted. Defendant has not demonstrated prejudice by Plaintiff adding their claims pursuant to Civil Code section 1950.5, certain phrases including text message, and delete certain paragraphs from the Complaint Plaintiff did not mean to include in the complaint. The court notes Plaintiff has complied with California Rules of Court Rule, rule 3.1324 by including a copy of the proposed amendment. Plaintiffs’ declaration in support of the motion also satisfies the requirements under CRC Rule 3.1324. 

Accordingly, Plaintiff Melinda Bonene’s Motion for Leave to File First Amended Complaint is GRANTED.