Case Number: EC064714??? Hearing Date: June 17, 2016??? Dept: NCD
TENTATIVE RULING:
MOTION FOR LEAVE TO FILE SECOND AMENDED
COMPLAINT
(CCP ??471.5, 473, CRC 3.1324(a))
Calendar: 12
Date: 6/17/16
Case No: EC 064714 Trial Date: None Set
Case Name: Glendale I Mall Associates, LP v. Cathy Jean, Inc.
Moving Party: Plaintiff Glendale I Mall Associates
Responding Party: Defendant Cathy Jean, Inc. (No Opposition)
RULING:
[No Opposition]
Plaintiff?s UNOPPOSED Motion for an Order Permitting the Filing of Second Amended Complaint is GRANTED.
Motion for leave to file a third amended complaint is granted. Plaintiff has failed to lodge the proposed pleading separately, and has submitted a pleading without the necessary referenced exhibits attached. Plaintiff is ordered to submit a separate original signed copy of the proposed pleading with all exhibits attached, by close of business this date, and the third amended complaint will be deemed filed this date. Plaintiff is responsible for ensuring that the pleading with attached exhibits is properly served on defendant.
RELIEF REQUESTED: Order permitting filing of proposed Second Amended Complaint
CONTENTS OF MOTION: (CRC 3.1324(a))
Copy of the proposed amendment served on all parties? (CCP ?471.5): Yes (but no lease attached)
Proposed amendment signed? Yes
States the effect of the pleading? Generally
Serially numbered to differentiate the sequential order of the amendments? Yes
States what allegations are proposed to be deleted or added ? Generally
Date Original Complaint filed: January 26, 2016
Effect of Amendment
Amend complaint for unlawful detainer to proceed as an action to recover damages for breach of contract due to tenant vacating premises prior to trial.
RELEVANT FACTS:
Plaintiff Glendale I Mall Associates brought the complaint and the First Amended Complaint in this action against defendant Cathy Jean, Inc. seeking possession of premises as well as rent, damages at a daily rate, attorney?s fees and costs.
GROUNDS FOR RELIEF:
Declaration by moving party (CCP ?2015.5; CRC 3.1115; 3.1324(b)):
Includes proposed additions: No
Explains why the amendment is necessary and proper: No
Specifies when facts giving rise to amendment discovered: February 25, 2016, tenant vacated premises
Reason why request not made earlier: No
OPPOSITION:
No opposition.
ANALYSIS: (Court’s discretion will usually be exercised liberally to permit amendment of the pleadings; Nestle v. Santa Monica, 6 Cal.3d 920, 929).
Procedural
No specification of additions
The motion is a bit difficult to evaluate, as it is not clear exactly what allegations are being added.
Rule 3.1324(a) of the CRC provides that a motion to amend a pleading before trial
?must:..
(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 allocations 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.?
Subdivision (b) requires that a separate declaration accompany the motion which
?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.?
Although the motion alleges generally that the claim is modified to be a breach of contract action rather than an unlawful detainer action, there is no designation paragraph by paragraph of what is new. In addition, the declaration fails to specify the effect of the amendment, why it is necessary or proper and the reason amendment was not sought earlier. The motion may be denied for failure to follow the mandatory procedures.
Substantive
CCP ? 473 provides 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…? The court?s discretion should usually be exercised liberally to permit amendment of pleadings, based on the fundamental policy that cases should be decided on their merits. Nestle v. Santa Monica (1971) 6 Cal.3d 920, 929. This is especially true where the motion to amend is timely made and the granting of the motion will not prejudice the opposing party. Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.
The motion relies on Civil Code ? 1952.3, which provides, in pertinent part:
(a) Except as provided in subdivisions (b) and (c), if the lessor brings an unlawful detainer proceeding and possession of the property is no longer in issue because possession of the property has been delivered to the lessor before trial or, if there is no trial, before judgment is entered, the case becomes an ordinary civil action in which:
(1) The lessor may obtain any relief to which he is entitled, including, where applicable, relief authorized by Section 1951.2; but, if the lessor seeks to recover damages described in paragraph (3) of subdivision (a) of Section 1951.2 or any other damages not recoverable in the unlawful detainer proceeding, the lessor shall first amend the complaint pursuant to Section 472 or 473 of the Code of Civil Procedure so that possession of the property is no longer in issue and to state a claim for such damages and shall serve a copy of the amended complaint on the defendant in the same manner as a copy of a summons and original complaint is served.?
Civil Code ? 1951.2 provides for lessor?s remedies upon breach by lessee, and states in pertinent part:
?(a) Except as otherwise provided in Section 1951.4, if a lessee of real property breaches the lease and abandons the property before the end of the term or if his right to possession is terminated by the lessor because of a breach of the lease, the lease terminates. Upon such termination, the lessor may recover from the lessee:
(1) The worth at the time of award of the unpaid rent which had been earned at time of termination;
(2) The worth at the time of award of the amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of such rental loss that the lessee proves could have been reasonably avoided;
(3) Subject to subdivision (c), the worth at the time of award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of such rental loss that the lessee proves could be reasonably avoided; and
(4) Any other amount necessary to compensate the lessor for all the detriment proximately caused by the lessee’s failure to perform his obligations under the lease or which in the ordinary course of things would be likely to result therefrom.?
It appears that possession of the property has been delivered to the lessor prior to trial, and lessor has appropriately sought leave to amend to recover remedies for alleged breach of the lease. There is no opposition explaining why the relief is not properly granted here. The motion will be granted.