Case Number: TC028557 Hearing Date: February 05, 2019 Dept: A

# 9. Sandra Hope, as executrix of estate of Christine Shanklin-Williams v. Russell Gonzalez et al.

Case No.: TC028557

Matter on calendar for: motion for leave to a file amended complaint

Tentative ruling:

I. Background

In this dispute, water leaked from an upstairs condominium into a condominium below. Defendants Russell Gonzalez and Kayla Gonzalez own the upper unit. Plaintiff Sandra Hope, in pro per, as executrix of the estate of Christine Shanklin-Williams, owns the downstairs unit. The event took place on April 29, 2014. The complaint was filed on September 12, 2016. Trial is currently set for May 13, 2019. The complaint states one cause of action for property damage.

Hope moves the court for leave to file the Amended Complaint. Defendants oppose.

For the reasons set forth below, the Court grants the motion.

II. Standard

Code of Civil Procedure §§ 473(a)(1) and 576 provide courts with the authority to allow the amendment of pleadings upon a showing of good cause and the absence of prejudice. California Rules of Court, Rule 3.1324(b) requires that Plaintiff prepare a declaration specifying (i) the effect of the amendment, (ii) why the amendment is necessary, (iii) when the facts giving rise to the amended allegations were discovered, and (iv) why the request for amendment was not made earlier.

“If discovery and investigation develop factual grounds justifying a timely amendment to a pleading, leave to amend must be liberally granted.” (Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596.) California judicial policy generally favors permitting amendment to pleadings. (See Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) Denial of leave to amend is appropriate where (1) the party seeking the amendment has been dilatory; and (2) the delay has prejudiced the opposing party. (Hirsa v. Superior Court (1981) 119 Cal.App.3rd 486, 490.)

In ruling on a motion for leave to file a cross-complaint, the Court generally considers whether the non-moving parties would face prejudice. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-88.) Examples of prejudice include: delay in trial date, increased costs of preparation, increased burden of discovery, etc. (Id.)

III. Analysis

The proposed amended complaint contains the following causes of action:

1) Wrongful death/wrongful act/wrongful conduct;

2) Fraudulent concealment;

3) Racketeering/violation of commercial codes articles 3, 4, 8, or 9;

4) Violation of a negotiable instrument/denial of a claim;

5) Bad faith/bad motive;

6) Security property loss/UCC9-305; and

7) Deprivation of fiduciary duties/reputation

a. Wrongful death

The proposed Amended Complaint alleges that mold from the water leak caused her brother, Willie Davis, to develop liver cancer that led to his death. The Court must determine if the wrongful death cause of action relates back to the original complaint. “An amended complaint relates back to the original complaint, and thus avoids the statute of limitations as a bar . . . if it: (1) rests on the same general set of facts as the original complaint; and (2) refers to the same accident and same injuries as the original complaint. [Citation.]” (Barrington v. A.H. Robins Co. (1985) 39 Cal.3d 146, 151.) Here, the wrongful death cause of action does not rest on the same injuries as the original complaint. The original complaint alleges water damage to plaintiff’s unit. The proposed complaint alleges that the water leak caused a mold infestation that lead to Willie Davis’s death. The statute of limitations for personal injury or wrongful death is two years. (C.C.P., § 335.1.) Mr. Davis passed more than three years ago. However, the Amended Complaint states that Hope only recently realized the connection. The Court cannot determine, based on the face of the pleading, that the Amended Complaint is barred by the statute of limitations or is otherwise improper. Any claimed defects may be raised in demurrer.

b. Remaining causes of action

The remaining causes of action are not entirely clear, but defendants are not substantially prejudiced by the amendment. (The Court will address with the parties whether the amended complaint necessitates a trial continuance.) Again, arguments that the Amended Complaint does not state valid causes of action may be addressed on demurrer. Plaintiff has been attempting to amend the complaint since August 2018. On this attempt, she has substantially complied with the Code of Civil Procedure and California Rules of Court.

The motion for leave to file the Amended Complaint is granted.

IV. Ruling

The motion for leave to file the Amended Complaint is granted. The Amended Complaint is deemed filed as of February 5, 2018. An answer or responsive pleading is due within 30 days.

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