991 BEL AIR ROAD LLC VS NADER KASHFIAN

Tentative Rulings

Case Number: SC125777    Hearing Date: July 23, 2020    Dept: N

TENTATIVE RULING

Plaintiff 991 Bel Air Road, LLC’s Motion for Leave to File First Amended Complaint is DENIED.

Defendants/Cross-Complainants Nader Kashfian and Rashel Kashfian’s Motion for Summary Judgment or in the Alternative, for Summary Adjudication of Issues is CONTINUED to __________________.

Moving parties to give notice. 

REASONING

Plaintiff 991 Bel Air Road, LLC (“Plaintiff”) filed this action on April 29, 2016, alleging that Defendants Nader Kashfian and Rashel Kashfian (“Defendants”), or their predecessors, encroached onto Plaintiff’s parcel of real property located at 991 Bel Air Road by constructing and maintaining a chain link fence, retaining wall, and concrete gutter that extends 43.5 feet on to Plaintiff’s property. On July 12, 2019, Defendants filed their motion for summary judgment or, alternatively, summary adjudication, arguing therein that Plaintiff’s action is barred by the three-year statute of limitations set forth in Code of Civil Procedure section 338 and/or by the five-year statute of limitations set forth in Code of Civil Procedure section 318. Defendants also argue the action accrued while the property was owned by a party other than Plaintiff, and in the absence of an assignment of the claims and causes of action by the prior owner, Plaintiff lacks standing, ownership or rights to assert the claims alleged in Plaintiff’s complaint.

On November 7, 2019, Plaintiff filed its opposition to Defendants’ motion for summary judgment or adjudication. On the same date, Plaintiff filed a motion for leave to file a First Amended Complaint to allege facts establishing the applicability of the delayed discovery rule. Specifically, Plaintiff seeks to allege the time and manner of its discovery of Defendants’ alleged trespass and nuisance on Plaintiff’s property and the inability of Plaintiff and its predecessor in interest to have made earlier discovery despite reasonable diligence.

The motions came on for hearing on January 28, 2020, and the Court allowed Plaintiff the opportunity to file a supplemental declaration to support its motion for leave to amend which complied with the procedural requirements set forth in rule 3.1324(b) of the California Rules of Court, as Plaintiff failed to describe when the facts giving rise to the proposed amended allegations were discovered and why the amendment was not brought earlier.

On February 11, 2020, Plaintiff’s counsel filed a declaration describing that Plaintiff first learned of the possibility of encroachment on the subject property no earlier than October 9, 2013, less than three years before it filed this action, and only definitively learned of the encroachment in June 2015, less than a year before filing the action. (Levinrad Supplemental Decl. ¶ 6.) Plaintiff’s predecessor in interest is Gary Lieberthal, trustee of the Gary Lieberthal Trust; Plaintiff purchased the property from the trust in early November 2013. (Ibid.) Plaintiff took Lieberthal’s deposition on June 19, 2019, and Lieberthal testified he did not learn of the encroachment until after he sold the property when he received a telephone call from defense counsel to discuss the encroachment. (Ibid.) Plaintiff was unaware of these facts before deposing Lieberthal. (Ibid.)

Plaintiff’s counsel further states it did not seek leave to amend until the motion for summary judgment was filed because it had no reason to believe amendment to allege facts regarding delayed discovery was necessary as the Court overruled a demurrer brought on statute of limitations ground, and if the Court had sustained the demurrer, it would have amended its complaint to allege delayed discovery facts. (Levinrad Supplemental Decl. ¶ 8.) Plaintiff’s counsel also notes the proposed amendment relates only to the three-year statute of limitations with respect to Plaintiff’s claim for damages, not its claim to recovery its property, which is governed by a different statute of limitations. (Levinrad Supplemental Decl. ¶ 9.)

On February 25, 2020, Defendants filed a declaration in response. Defendants argue Plaintiff has been aware of a statute of limitations issue since the time of the demurrer, and the demurrer was only overruled because a request for judicial notice was denied, such that the action was not time barred on its face. (Macaulay Supplemental Decl. ¶ 9.) Counsel also notes the demurrer ruling stated that Defendants’ proper remedy was to ascertain the factual basis of Plaintiff’s contention through discovery and, if necessary, file a motion for summary judgment. (Ibid.) Defendants argue Liberthal’s 2019 deposition does not establish delayed discovery or provide a basis for amending the complaint. (Macaulay Supplemental Decl. ¶¶ 11-12.) Defendants assert they will be prejudiced by the proposed amendment if it is allowed, as the pleadings will be reopened four years after suit was filed, the motion for summary judgment will have be refiled and Defendants’ ability to secure an earlier disposition of the case will be further delayed. (Macaulay Supplemental Decl. ¶ 14.)

The court may grant leave to amend the pleadings at any stage of the action. (Code Civ. Proc., § 473, subd. (a).) Courts apply a policy of great liberality in permitting amendments to the complaint “at any stage of the proceedings, up to and including trial,” absent prejudice to the adverse party. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) “The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified,” and it “should be denied only where the facts are not in dispute, and the nature of the plaintiff’s claim is clear, but under substantive law, no liability exists and no amendment would change the result.” (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428, internal quotation marks and citations omitted.)

Here, the Court previously found on demurrer that the claims asserted in the complaint were not time barred on their face (see Minute Order dated Aug. 5, 2016, at p. 4), and it is only in a situation where the claims are barred on their face that a party is required to plead facts alleging delayed discovery. (See Saliter v. Pierce Brothers Mortuaries (1978) 81 Cal.App.3d 292, 297.) If the claims are not barred on their face, which the Court has already found they are not, the absence of delayed discovery allegations in the complaint is of no consequence because it is the evidence opposing summary judgment that will control, as such evidence will establish whether the delayed discovery rule, in fact, applies.

Further, the Court finds allowing leave to amend four years after Plaintiff filed this action will result in prejudice to Defendants. That is, if the Court were to allow the filing of a First Amended Complaint almost four years after the action was initially filed, Defendants would be required to spend resources determining whether additional discovery or motions are necessary and incur costs due to an amendment based on a statute of limitations argument that was made known to Plaintiff when this action was first filed. Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, added costs of preparation, or an increased burden of discovery. (See Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488 [trial court’s denial of leave to amend was proper where those factors were present].) The Court is not inclined to allow amendment where it is not necessary and will result in prejudice to Defendants.

Accordingly, Plaintiff 991 Bel Air Road, LLC’s Motion for Leave to File First Amended Complaint is DENIED.