Case Name:   The Restoration Cleanup Company, Inc. v. Rantz, et al.

Case No.:       1-11-CV-212971

 

 

On June 6, 2014, the Court issued an order addressing various demurrers, motions to strike, motions to sever, and a motion to appoint a discovery referee.  On June 12, 2014, cross-defendant Koning & Associates, Inc. filed a notice of entry of the order.   Defendant/cross-complainant Northwall Builders, Inc. filed a notice of entry of the order on June 18, 2014.  On June 20, 2014, defendants, cross-defendants and cross-complainants Michael Rantz and Paula Rantz (collectively, “The Rantzes”) filed a “notice of motion and motion for reconsideration and leave to amend.”  The memorandum of points and authorities in support of the motion was 46 pages long.  On July 22, 2014, the Rantzes filed a 16-paged “supplemental brief alerting court to new law and documents discovered after the filing of the present motion for reconsideration and leave to amend.”  After parties filed oppositions to the motion, on July 31, 2014, the Rantzes then filed a 12-paged “reply to all cross-defendants oppositions to motion for reconsideration and leave to amend.”

 

As a preliminary matter, the Rantzes do not separately notice or separately file their motion for reconsideration and motion for leave to file an amended complaint.  Instead, in violation of Code of Civil Procedure section 1005 and Rules of Court 3.1110, 3.1112 and 3.1324, the Rantzes attempt to file a single motion that address both issues.  Apparently, the motion for leave to amend seeks to re-allege many of the same allegations that the Court has already deemed to be without merit.  (See Ghantous decl. in support of motion for reconsideration and motion for leave to amend, ¶ 68 (stating that “[a]s the Court has not stricken virtually all of the added language I included in the SACC… and also denied the basis for punitive damages against USIC and NAC… I am seeking leave to have these allegations included into the third amended cross-complaint”).)  This is improper.  Further, Rule of Court 3.1324, subdivision (b) specifically states that “[a] separate declaration must accompany the motion and must specify: (1) [t]he effect of the amendment; (2) [w]hy the amendment is necessary and proper; (3) [w]hen the facts giving rise to the amended allegations were discovered; and (4) [t]he reasons why the request for amendment was not made earlier.”  (Rule of Court 3.1324, subd. (b) (emphasis added).)  In violation of Rule of Court 3.1324, to the extent that the Rantzes’ motion were to be treated as a separate motion for leave to amend, the Rantzes have not filed a separate declaration in support of their motion for leave to amend.

 

The Rantzes also fail to comply with the Rules of Court with regards to page limitations.  Rule of Court 3.1113 states:

 

Except in a summary judgment or summary adjudication, no opening or responding memorandum may exceed 15 pages….  No reply or closing memorandum may exceed 10 pages….

 

A party may apply to the court ex parte but with written notice of the application to the other parties, at least 24 hours before the memorandum is due, for permission to file a longer memorandum….

 

A memorandum that exceeds the page limits of these rules must be filed and considered in the same manner as a late-filed paper.
(Rule of Court 3.1113, subds. (d)-(g).)

 

Rule of Court 3.1300 states that the Court may refuse to consider a late filed paper so long as the minutes or order so indicates.

 

Here, the Rantzes failed to comply with the page limitations three separate times.  The Rantzes did not apply to the court ex parte for permission to file a longer memorandum.

 

Further, the “supplemental brief alerting court to new law and documents discovered after the filing of the present motion for reconsideration and leave to amend”—which attaches a new declaration and an additional 20 exhibits—filed on July 22, 2014, is an untimely new motion for reconsideration.  (See Code Civ. Proc. § 1008, subd. (a).)  As the supplemental brief is both untimely and exceeds the page limits provided by Rule of Court 3.1113, subdivisions (d) and (e), the Court hereby refuses to consider the “supplemental brief alerting court to new law and documents discovered after the filing of the present motion for reconsideration and leave to amend” pursuant to Rule of Court 3.1113, subdivision (g) and 3.1300, subdivision (d).  The Court also admonishes the Rantzes for its blatant violation of Rule of Court 3.1113, subdivision (d) as to its initial memorandum of points and authorities and their reply brief—which they filed after expressly being advised of their prior violation of Rule of Court 3.1113, subdivision (d).

 

Moreover, the Rantzes “seek[] leave to add… Robert Closson, Clifford Hirsch and the law firm of Hirsch & Closson….”  (Rantzes’ initial memorandum of points and authorities in support of motion for reconsideration and leave to amend, p.1:8-10.)  The Rantzes concede that “the ORDER requires RANTZ [to] seek leave of court to include counsel of record as part of its conspiracy claim… due to the provisions found in Civil Code section 1714.10,” but contend that they need obtain such an order because the “claims against the law firm are based on the independent duties coverage counsel maintains to RANTZ and the law firm and their lawyers participation in the conspiracy to bury RANTZ in oppressive litigation practice.”  (Id. at p.37:14-24.)  In support of their claim, the Rantzes cite to Shafer v. Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone (2003) 107 Cal.App.4^th 54, wherein the court stated “agents may be held subject to liability for conspiracy to commit actual fraud since they have a duty to abstain from injuring the plaintiff through express misrepresentation, independent of the insurer’s implied covenant of good faith and fair dealing.”  (Shafer, supra, 107 Cal.App.4^th at p.84.)  However, the Shafer court continued: “Because LaBelle had a duty to refrain from injuring the Shafers through express misrepresentation, section 1714.10 does not apply.”  (Id.)  Here, unlike Shafer, the Rantzes do not allege any express misrepresentations with any degree of specificity by the attorney defendants.

 

On the contrary, it appears that the Rantzes complain about the attorneys’ decision “to defend themselves and the contractors, who enlisted an army of associates to burry [sic] RANTZ and their counsel in discovery and law and motion practice, all knowing full well that every word uttered in the pleadings by RANTZ were true.”  (Proposed third amended cross-complaint, ¶ 291; see also id. at ¶ 305 (alleging that “Clifford Hirsch, a named partner of HCMS who issued the RANTZ coverage denials, prior to USIC’s answer, intentionally and willfully engaged in unreasonable and combative litigation tactics solely designed to drive up the costs of litigation and delay USIC’s payment of policy benefits owning to RANTZ”).)  Here, although the Rantzes are correct that a plaintiff is not required to seek an order pursuant to Civil Code section 1714.10, subdivision (c) when alleging “a cause of action against an attorney for a civil conspiracy with his or her client, where (1) the attorney has an independent legal duty to the plaintiff, or (2) the attorney’s acts go beyond the performance of a professional duty to serve the client and involve a conspiracy to violate a legal duty in furtherance of the attorney’s financial gain,” the Rantzes are incorrect as to the nature of their own allegations and the applicability of Shafer.  They were, in fact, required to file a verified petition and demonstrate there is a reasonable probability that the Rantzes would prevail in the action.  As with the numerous other deficiencies addressed above, the Rantzes did not so comply.

 

For the above reasons, and due to the fact that the motion(s) is/are without merit, the motion for reconsideration and leave to amend is DENIED.

 

The Rantzes are ordered to file an amended complaint fully in conformity with the Court’s order of June 6, 2014, that removes all defendants and causes of action to which demurrer was sustained without leave to amend, and allegations that were stricken without leave to amend, within 15 days of the hearing of this motion, and without any claims alleged against counsel of record.