Case Number: BC654867    Hearing Date: July 30, 2018    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

1709 WESTGATE LIMITED, et al.,

Plaintiffs,

vs.

MYNA CHAFFEE, et al.,

Defendants.

AND ALL RELATED CROSS-ACTIONS

 

Case No.: BC 645867
Hearing Date: July 30, 2018
   
[TENTATIVE] RULING RE:

PLAINTIFFS AND CROSS-DEFENDANTS WESTGATE LIMITED, THE MARWIN COMPANY, MOSS MANAGEMENT SERVICES, INC., RACHEL POZO, AND JUSTIN VERSTEGEN’S MOTION FOR LEAVE TO FILE FIRST AMENDED AND SUPPLEMENTAL COMPLAINT.

 

Plaintiffs and Cross-Defendants Westgate Limited, The Marwin Company, Moss Management Services, Inc., Rachel Pozo, and Justin Verstegen’s Motion for Leave to File First Amended and Supplemental Complaint is GRANTED.

FACTUAL BACKGROUND

Plaintiff 1709 Westgate Limited (“Westgate”) is the owner of an apartment building located at 1709 Westgate Avenue in Los Angeles.  The building’s manager is plaintiff The Marwin Company (“Marwin”), the management company is plaintiff Moss Management Services, Inc. (“Moss”), and plaintiffs Rachel Pozo (“Pozo”) and Justin Verstegen (“Vertegen”) are employees of Westgate. (Complaint ¶¶ 1–5.) Collectively, the court will refer to plaintiffs as “Westgate.” Defendants Myna Chaffee (“Chaffee”) and Sadat Kharrazi (“Kharrazi”) are tenants of Unit No. 3 at the Property. (Id. ¶¶ 6, 7.)

Westgate alleges that Chaffee and Kharrazi have made certain posts on Yelp.com and pissedconsumer.com that contain false and defamatory statements. (Complaint ¶ 11.)

Chaffee and Kharrazi have filed a Cross-Complaint (“XC”) in this action. The XC alleges numerous habitability issues with the premises, as well as allegations of disability discrimination.

PROCEDURAL HISTORY

Plaintiffs filed their Complaint on January 9, 2017, alleging two causes of action:

  1. Libel Per Se
  2. Injunctive Relief

Chaffee and Kharrazi filed their XC on February 24, 2017, alleging eleven causes of action:

  1. BREACH OF WARRANTY OF HABITABILITY (CONTRACT)
  2. BREACH OF WARRANTY OF HABITABILITY(TORT)
  3. BREACH OF THE COVENANT OF QUIET ENJOYMENT
  4. NEGLIGENT MAINTENANCE OF PREMISES
  5. NUISANCE
  6. HOUSING DISCRIMINATION AND HARASSMENT IN VIOLATION OF CAL. GOV’T CODE § 12955 ET SEQ. ON THE BASIS OF DISABILITY
  7. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
  8. HARASSMENT IN VIOLATION OF CAL. GOV’T CODE § 12955(F)
  9. FAILURE TO REASONABLY ACCOMMODATE DISABILITY IN VIOLATION OF CAL. GOV’T CODE § 12927(C)(1)
  10. VIOLATION OF CALIFORNIA DISABLED PERSONS ACT
  11. VIOLATION OF CIVIL CODE § 1942.4

Chaffee and Kharrazi filed their Answer to the Complaint on February 24, 2017.

Westgate plaintiffs filed their Answer to the XC on March 28, 2017.

Westgate filed a First Amended Answer on April 26, 2017. On May 5, 2017, this court overruled Chaffee and Kharrazi’s demurrer to the Answer.

On July 27, 2017, this court granted Plaintiffs’ Motion to Compel Further Responses to Special Interrogatories.

On January 5, 2018, this court granted Attorney Salar Atrizadeh’s Motion to be Relieved as Counsel for Defendants Chaffee and Sadat.

Westgate filed the present Motion for Leave to File First Amended and Supplemental Complaint on March 14, 2018. The motion was served by mail on the same day. No opposition has been filed.

DISCUSSION

 

  • MOTION FOR LEAVE TO AMEND A PLEADING

 

Code Civ. Proc. section 473 subd. (a)(1) 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.

“The trial court has discretion to permit or deny the amendment of the complaint, but instances justifying the court’s denial of leave to amend are rare.” (Armenta ex rel. City of Burbank v. Mueller Co. (2006) 142 Cal.App.4th 636, 642.)

“Although courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial [Citations], this policy should be applied only ‘[w]here no prejudice is shown to the adverse party . . .’ [Citation.] A different result is indicated ‘[w]here inexcusable delay and probable prejudice to the opposing party’ is shown. [Citation.]” (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487.)

Pursuant to California Rule 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.”

Westgate argues that an amended complaint is necessary because of Defendants’ Cross-Complaint, filed in February 2017. (Motion at p. 2.) Although the original complaint in this action alleged defamation claims, Defendants’ assertion of claims related to habitability and disability discrimination have made it appropriate, Westgate argues, to assert claims for breach of the lease agreement and declaratory relief so all related issues can be resolved. (Motion at p. 2.) Westgate appears to argue that the delay between the February 2017 filing of the cross complaint and the March 2018 filing of the present motion rests on the failure of mediation efforts in December 2017. (Rovens Decl. ¶ 5.) Defendants and Cross-Complainants have not opposed this motion, or offered any argument as to what prejudice they might suffer from permitting this amendment.

The Motion for Leave to File a First Amended and Supplemental Complaint is therefore GRANTED.

Plaintiffs and Cross-Defendants to provide notice.

DATED:  July 30, 2018                                  ________________________________

Hon. Robert S. Draper

Judge of the Superior Court

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