Pamela Vander Heide vs David Settani et al
Case No: 18CV01436
Hearing Date: Fri May 25, 2018 9:30

Nature of Proceedings: Motion to File First Amended Complaint

TENTATIVE RULING: The motion is granted.

Background: This is an action for unlawful detainer, originally filed on March 21, 2018. It relates to premises located at 3158 Braemar Drive, Santa Barbara. The complaint sought past due rent of $10,500, and damages at the rate of $650/day from April 15, 2018 until defendants vacated possession. It further sought reasonable attorneys’ fees, and forfeiture of the agreement. A default was entered against one of the four named defendants on March 29, 2018, but was set aside by order obtained after an ex parte application, and defendants were permitted to answer on April 10, 2018.

Motion: Plaintiff now seek to file a First Amended Complaint, on the ground that possession of the property is no longer at issue. Consequently, the case is no longer one in unlawful detainer, but should be amended to allow the complaint to seek damages from defendants. Her proposed FAC asserts causes of action for (1) breach of rental agreement, (2) breach of the covenant of good faith and fair dealing, (3) conversion, (4) violation of statute, and (5) intentional infliction of emotional distress. While the rent due remains part of the compensation sought by the FAC, it is also largely based upon conduct by defendant Settani which caused considerable damage to the premises, as well as defendants’ removal of plaintiff’s tangible property from the premises.

Defendants have not filed opposition to the motion.

ANALYSIS: The motion is granted.

As noted by plaintiff’s motion, Civil Code section 1952.3 allows the conversion of an unlawful detainer proceeding to an ordinary civil action for damages, once possession of the property is no longer in issue because it has been delivered to the lessor. In such an action, the lessor may obtain any relief to which the lessor is entitled. However, if the lessor seeks damages not recoverable in the unlawful detainer proceeding, the complaint must be amended to show that possession of the property is no longer in issue, and to state a claim for the requested damages.

This is precisely what plaintiff had done. The motion is appropriately made. Defendants have not opposed the motion, but it would be appropriate for the court to grant the motion even in the face of filed opposition.

Plaintiff shall be permitted to separately file her FAC, and this action shall be converted from an unlawful detainer action to a regular civil action for damages. The FAC shall be filed and served forthwith; defendants shall file their answer to the FAC within 30 days of the date of service of the FAC upon them.