Case Number: EC061182    Hearing Date: August 08, 2014    Dept: A

Babadjanian v Asadi

MOTION FOR LEAVE TO FILE AMENDED COMPLAINT

Calendar: 4
Case No: EC061182
Date: 8/8/14

MP: Plaintiffs, Boghos Babadjanian and Sara Babadjanian
RP: Defendants, Mohammad Asadia and Law Offices of Asadi and Associates, APC

RELIEF REQUESTED:
Order granting leave to file First Amended Complaint.

DISCUSSION:
This case arises from the Plaintiffs’ claim that the Defendants caused them damages by providing legal services in a negligent manner in a prior action, EC052471, concerning the Plaintiffs’ real property and claims against Deutsche Bank Indymac Mortgage Services, and Quality Loan Services.
This hearing concerns the Plaintiffs’ motion for leave to file a Third Amended Complaint in order to add a new cause of action for breach of fiduciary duty.
A threshold issue is that the Defendants argue that the Plaintiffs did not comply with CCP section 1005(b) because the motion was served on July 16, 2014 when it should have been served one day earlier, on July 15, 2014.
Under California authority, the Court may treat an opposition on the merits as a waiver of a defect in notice. Alliance Bank v. Murray (1984) 161 Cal. App. 3d 1, 7. Here, the Defendants’ opposition papers include arguments directed at the merits of the Plaintiffs’ motion for leave to amend, e.g., the Plaintiffs’ motion does not comply with CRC rule 3.1324 and the Plaintiffs’ new cause of action is improper. Since the Defendants’ opposition papers include arguments on the merits, the Court will consider the Defendants to have waived any defect in the notice and issue a ruling on the merits.

CCP section 473(a) permits the Court to grant leave to a party to amend a pleading. The Court’s discretion regarding granting leave to amend is usually exercised liberally to permit amendment of pleadings. Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939. If a 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. Morgan v. Superior Court of Los Angeles County (1959) 172 Cal. App. 2d 527, 530.

CRC rule 3.1324 required the Plaintiffs’ motion to include a copy of the proposed pleadings, to identify the amendments, and to be accompanied by a declaration including the following facts:

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 Plaintiffs’ motion does not include the required declaration. There are no facts identifying the effect of the amendment, why the amendment is necessary and proper, when the facts giving rise to the amendments were discovered, and the reasons why the request for amendment was not made earlier.
This prevents the Court from determining that the Plaintiff’s motion to amend is timely, i.e., made promptly after the facts giving rise to the amended allegations were discovered. Further, this claim is not based on facts obtained through recent discovery. Instead, the Plaintiffs are attempting to plead a breach of fiduciary duty against their attorneys for the billing practices, which are facts that the Plaintiffs raised in prior pleadings. There are no facts in a declaration offering an explanation for the failure to seek leave to add the new cause of action earlier.

Therefore, the Court will deny the Plaintiffs’ motion because the Plaintiffs did not comply with CRC rule 3.1324 by accompanying the motion with a declaration containing the required facts. Further, the Plaintiffs have failed to demonstrate that their motion is timely.

RULING:
Deny Plaintiffs’ motion for leave to file a Third Amended Complaint.