MARK P. P. IKE, TRUSTEE OF MARK PAUL IKE TRUST, U/D/T 6/24/95 VS TRICOLOR AUTO GROUP, LLC, A DELAWARE LIMITED LIABILITY COMPANY, ET AL.

Tentative Rulings

Case Number: *******6750    Hearing Date: February 20, 2020    Dept: 74

*******6750 IKE vs TRICOLOR AUTO GROUP, LLC

Plaintiff’s Motion for Leave to Amend Complaint

TENTATIVE RULING: The motion is GRANTED. Plaintiff may file an amended complaint within 10 days.

Defendants’ request for judicial notice is GRANTED. (Evid. Code ; 452(c), (d).) However, the Court will not take judicial notice of the truth of the contents of the court documents. Plaintiff’s objections to the RJN are overruled and not in proper format per the Rules of Court.

CCP ;473(a)(1) states: “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.”

Judicial policy favors resolution of all disputed matters between the parties and, therefore, the courts have held that “there is a strong policy in favor of liberal allowance of amendments.” (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 296-97; see also Ventura v. ABM Industries, Inc. (2013) 212 Cal.App.4th 258, 268) [“Trial 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 where the adverse party will not be prejudiced.”].)

Pursuant to CRC 3.1324(a), a motion to amend must: (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered; and (2) state what allegations are proposed to be deleted from or added to the previous pleading and where such allegations are located. CRC 3.1324(b) requires a separate declaration that accompanies the motion, stating: (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.

The Court finds the procedural requirements of CRC 3.1324, especially in light of the James F. Rumm’s supplemental declaration.

Plaintiff seeks to add two causes of actions for (1) waste and (2) breach of the subject lease by failure to obtain consent to a sublease of a portion of the property. Plaintiff also seeks to add new parties, Remo Weber and 3 of his related entities, Global Transportation Solutions, Inc., Mybus Corporation and L.A. Excursions, Inc., which the new claims are against. The proposed new parties are apparent sublessors and key parties referenced in the Cross-Complaint. Plaintiff has discovered that the proposed defendants appear to already be subtenants on the property, without any notice or request for approval to Plaintiff. A few months after Defendant Ganas Holdings, LLC filed its Cross-Complaint, Plaintiff’s counsel obtained photographs of the subject property which showed that several businesses operated by and connected to Weber appear to be in possession of and utilizing a significant portion of the subject property. (Rumm Supp. Decl., ¶ 2, Exh. 3.) Plaintiff now brings these additional claims to address the further breach of the lease that the Cross-Complaint originally raised.

Defendants’ assertion that the motion should be denied because they will be severely prejudiced is without merit. Trial is eight months away. The resulting prejudice would be minimal, if at all. Plaintiff was not dilatory in seeking amendment as the photographs were only obtained a few months ago.

The Court declines to consider the merits of the proposed amendments. Ordinarily, the court will not consider the validity of the proposed amended pleading in ruling on a motion for leave since grounds for a demurrer or motion to strike are premature. However, the court does have discretion to deny leave to amend where a proposed amendment fails to state a valid cause of action as a matter of law and the defect cannot be cured by further amendment. (California Casualty General Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 281.)

In light of the great liberality in allowing amendments and the lack of resulting prejudice, the motion is GRANTED.