Case Number: KC068330??? Hearing Date: December 22, 2016??? Dept: J
Re: Abdulla Adul Rasoul Ehqaqy, etc. v. Abdulaziz Taher Mulla Juma Alkhateed, etc., et al. (KC068330)
MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT
Moving Party: Plaintiff Abdulla Adul Rasoul Ehqaqy, Trustee of the Endowment of Mirza Hassan Mousa Al-Sulaimi
Respondent: No timely opposition filed
POS: Moving OK
Plaintiff is a successor trustee of an endowment which holds title to the real property located at 3285 North Garey Avenue in Pomona (?subject property?) for operating a religious school. Plaintiff claims that it 2003, his predecessor was coerced into giving power of attorney to a principal of Assadiq Foundation, Inc. (?AFI?) to purportedly transfer the subject property into a ?charitable? organization to gain tax benefits; instead, the subject property was transferred to AFI, which then proceeded to try to sell the subject property for its own profit. The complaint, filed on 3/29/16, asserts a cause of action for:
1. Quiet Title
On 6/14/16, AFI filed its cross-complaint, asserting causes of action against plaintiff/cross-defendant for:
1. Quiet Title (Adverse Possession)
2. Unjust Enrichment
On 10/21/16, the court ordered the 5/9/16 answer of Abdulaziz Taher Mulla Juma Alkateeb stricken. A bench trial is set for 7/17/17.
Plaintiff Abdulla Adul Rasoul Ehqaqy, Trustee of the Endowment of Mirza Hassan Mousa Al-Sulaimi (?plaintiff?) moves for an order permitting the filing of its proposed First Amended Complaint (?FAC?), which seeks to (1) add a new party, Sayad Mortada Sadiq Qazweeni (?Qazweeni?), (2) add new facts relating to the power of attorney purportedly giving Qazweeni the legal authority to transfer the subject property to his entity, which power of attorney first came to light via Defendant Assadiq Foundation, Inc. (?AFI?)?s cross-complaint; (3) add a new cause of action for Declaratory Relief as against AFI and Qazweeni as to what authority had been granted to Qazweeni by the subject power of attorney and when such authority began; (4) add a new cause of action for Declaratory relief against Defendant Abdulaziz Taher Mulla Juma Alkhateeb as to whether the subject property was required to have been transferred to the Al-Sulaimi Endowment from the estate of the grantor upon the grantor?s death, and that such transfer is required to and/or deemed to have occurred; (5) revise the Quiet Title cause of action to include new facts as to the newly produced power of attorney; (6) add a new cause of action for Cancellation of Deed as to the grant deed which forms the basis of the quiet title action previously pled; (7) add a new cause of action for Deed Procured by Fraud against AFI and Qazweeni relating to the transfer of the subject property by grant deed, outside of the chain of title and outside of the parameters and effective dates of the newly produced power of attorney; (8) add a new cause of action against Qazweeni for Sttautory Damages Pursuant to Probate Code ? 4231.5(c) for breach of his fiduciary duties while purportedly acting under the power of attorney and to (9) amend the prayer for relief consistent with the above-referenced new and revised causes of action.
Plaintiff was unaware that AFI claimed to have received title to the subject property pursuant to a power of attorney until a month or more after AFI purportedly was granted legal title to the subject property by Qazweeni. Upon investigation of these new facts contained in AFI?s cross-complaint and after substitution of new counsel on plaintiff?s behalf (i.e., on 8/30/16) in light of these new facts, amendment of the complaint is needed. On/about 11/14/16, plaintiff?s new counsel asked defendants? counsel to stipulate to the filing of the proposed FAC, but defendants refused. No other party besides plaintiff has commenced discovery; as such, there would be no prejudice to defendants if this motion were granted.
?The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading?? CCP ? 473(a)(1); and see ? 576. ?While a motion to permit an amendment to a pleading to be filed is one addressed to the discretion of the court, the exercise of this discretion must be sound and reasonable and not arbitrary or capricious. Richter v. Adams [(1941)] 43 Cal.App.2d 184, 187; Eckert v. Graham [(1933)] 131 Cal.App. 718, 721. And it is a rare case in which ?a court will be justified in refusing a party leave to amend his pleadings so that he may properly present his case.? Guidery v. Green [(1892)] 95 Cal. 630, 633; Marr v. Rhodes [(1900)] 131 Cal. 267, 270. 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 and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion. Nelson v. Superior Court [(1950)] 97 Cal.App.2d 78; In re Estate of Herbst [(1938)] 26 Cal.App.2d 249; Norton v. Bassett [(1910)] 158 Cal. 425, 427.? Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.
A separate declaration must accompany the motion to amend a pleading specifying 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. The motion must also include a copy of the proposed amendment, and identify by page, paragraph, and line number any additions to and deletions from the prior pleading. CRC 3.1324(a).
Plaintiff?s counsel?s declaration complies with the aforesaid requirements. He explains that the power of attorney referenced in AFI?s cross-complaint filed 6/14/16 was not known to, nor had it ever been seen by, either plaintiff?s current trustee or plaintiff?s counsel of record prior to that date. (Souders Decl., ? 4). Souders substituted in as new counsel on/about 8/30/16. (Id., ? 5). Plaintiff?s current trustee is located in the Middle East with challenging time differences. (Id., ? 7). As Souders explains, ?[t]he subject Power of Attorney dated February 22, 2003, implicates an additional defendant as a necessary party to this action, as well as additional causes of action including the necessity of the parties to seek declaratory relief from the Court in relation to the Power of Attorney as it affects the rights and authority of parties and the validity of the January 22, 2003 Grant Deed.? (Id., ? 11). He has attached a redlined version reflecting the line-by-line changes to the words, parties, and pagination of the complaint. (Id., ? 2, Exhibit ?2?).
Souders unsuccessfully tried to obtain defendants? counsel?s stipulation to the filing of the proposed First Amended Complaint on 11/14/16. (Id., ? 8). Defendants cannot articulate any prejudice, inasmuch as they had not commenced discovery as of the date of the filing of this motion. (Id., ? 12). Trial was only recently set for 7/17/17 and it thus 9 months away.
The motion is granted. The First Amended Complaint is deemed filed and served upon those parties who have appeared in the action on this date.