Judge: Yolanda Orozco, Case: 21STCV35730, Date: 2023-02-01 Tentative Ruling
Case Number: 21STCV35730 Hearing Date: February 1, 2023 Dept: 31
LEAVE TO FILE A SECOND
AMENDED COMPLAINT
TENTATIVE RULING
Plaintiff’s Motion for Leave to File a Second Amended Complaint is GRANTED.
Background
On September 28, 2021, Plaintiff The Redeemed Christian Church of God-Jesus Embassy Los Angeles filed a complaint against Defendants Swift Petrochemicals, Inc; Mutiu Olatunji Durosinmi-Etti; and Does 1 to 10.
The operative First Amended Complaint alleges causes of action for:
1.
Breach of Contract/Specific Performance
2.
Breach of Contract
3.
Promissory Estoppel
4.
Breach of the Implied Covenant of Good Faith and Fair
Dealing
5.
Declaratory Relief
6. Constructive Trust
On February 14, 2022, Defendant Swift Petrochemicals, Inc filed a Complaint for Unlawful Detainer against the Redeemed Christian Church.
On May 16, 2022, the Court granted Plaintiff’s motion to consolidate cases 21STCV35730 and 22CMUD00149, with this case (21STCV35730) as the lead case.
On October 20, 2022, Plaintiff filed a Motion for Leave to File Second Amended Complaint.
On January 13, 2023, Defendants filed opposing papers on January 13, 2023.
On January 23, 2023, the hearing was CONTINUED to allow
Plaintiff to submit a supplemental declaration showing what was being deleted
and added to the Second Amended Complaint and the effect and necessity of the
proposed amendments.
LEGAL STANDARD
Leave to amend is permitted under Code of Civil Procedure section 473, subdivision (a) and section 576. California courts are required to permit liberal amendment of pleadings in the interest of justice between the parties to an action. (Dieckmann v. Superior Court (1985) 175 Cal.App.3d 345, 352.)¿ Generally, amendment must be permitted unless there is unwarranted delay in requesting leave to amend or undue prejudice to the opposing party. (Duchrow v. Forrest (2013) 215 Cal.App.4th 1359, 1377.) Even if a good amendment is proposed in proper form, unwarranted delay in presenting it may – of itself—be a valid reason for denial. (Emerald Bay Community Association v. Golden Eagle Ins. Corp. (2005) 130 Cal.App.4th 1078, 1097.)¿¿¿¿
Under California Rules of Court, rule 3.1324, 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. (Cal. Rules of Court, rule 3.1324(a).) A separate supporting declaration specifying (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 reason why the request for amendment was not made earlier must accompany the motion. (Id., rule 3.1324(b).)¿¿
Discussion
Plaintiff has submitted a supplemental declaration attesting to the following amendments:
(A)I. Insert “Unbeknownst to Plaintiff (as Plaintiff will later discover), that Defendant ETTI’s true motive in doing this was to act like the subject property was a commercially leased property, which it was not.” In (page 7, ¶ 28-FAC) (Page 8, ¶28-SAC) II. Insert “in actual fact” in (page 7, ¶28-FAC) (Page 8, ¶ 28-SAC) III. Insert “made to support Defendant Etti’s immigration application.” (page7, ¶28-FAC) (page 8, ¶ 28-SAC)
(B) Replace ¶31, page 8-9 (FAC) with a new Paragraph 31-36, pages 8-10 (SAC)
(C) I. Delete “July” on ¶32, page 9 (FAC)- (page 10, ¶37- SAC) II. Insert “following a formal denial of Defendant ETTI’s I-140 immigration petition for an immigrant visa and realizing that he had to leave the United States” ¶32, page 9 (FAC)- (¶37, page 10 SAC) III. Insert “then” into ¶32, page 9 (FAC) – ¶37, page 10 (SAC)
(D) Replace ¶33, page 9 (FAC) with a new ¶39, pages 10-11(SAC) “Consequently, sometime in 2019, Defendant, ETTI initiated a meeting attended by the Defendant, his real estate agents – Messrs. Roger and Melanie, Mr. George Adams – a lender representative (brought by the Defendants), Mr. Marcus – (a marketer brought by the Defendant and the Plaintiff represented by Pastor Niran, his wife Oluwatoyin Fafowora and Mr. Oluseye Ogunjimi.”
(E) Add the following paragraphs as new paragraphs 107, 108, 109, 110, 111, 112, 113, 114, 115, 116 to the seventh cause of action for fraud.
(F) Add new prayer to Plaintiff’s prayers: “For an Order canceling the parties 2015, 2016, 2017, 2018 and 2019 lease agreements”.
(Agge Decl. Ex. 2.)
The Court finds that both parties will be equally burdened in discovery with the addition of a new cause of action since Plaintiff bears the burden of having to prove its allegations. The fact that Defendants will incur additional discovery costs is not a sufficient showing of prejudice to justify the denial of this Motion given the liberality in allowing amendments to pleadings the cases instruct. Similarly, the fact that Defendants incurred costs in filing a demurrer to the First Amended Complaint is not evidence of undue prejudice sufficient to deny this Motion. Plaintiff also incurred costs in bringing this Motion due to the Defendants’ refusal to stipulate to the amendment. (Mot. at 7:1-2.)
Since Defendants have failed to show undue prejudice or that Plaintiff unduly delayed in bringing, the Motion for Leave to Amend is GRANTED.
Conclusion
Plaintiff’s Motion for Leave to File a Second Amended Complaint is GRANTED. The Second Amended Complaint must be separately filed within 5 days.
Moving party to give notice.