Case Number: KC069393 Hearing Date: January 17, 2018 Dept: J

Re: Kathy Jones v. Casita Financial, Inc., et al. (KC069393)

MOTION FOR AN ORDER TO AMEND COMPLAINT

Moving Party: Plaintiff Kathy Jones

Respondents: Defendants FCI Lender Servces, Maven Asset Management, Inc., Sandcastle Trustee Services, Klya D. Sullivan, Sandcastle Trustee Services and Paul A. Torok and Defendant DLI Properties, LLC

POS: Moving OK; FCI’s, et al. opposition OK; DLI’s opposition filed just 8 court days prior to the hearing contrary to CCP § 1005(b)

This is a wrongful foreclosure action involving plaintiff’s residential property located at 1903 S. Shadydale Avenue in West Covina. The complaint, filed 6/19/17, asserts causes of action against Defendants Casita Financial, Inc. (“CFI”), Maven Asset Management, Inc., Sandcastle Trustee Services (“Sandcastle”), Kyla D. Sullivan, individually and as designated officer of Casita Financial, Maven Asset Management, Inc. and Sandcastle, Paul A. Torok (“Torok”), DLI Properties, LLC (“DLI”) and Does 1-10 for:

Cancellation of Trustee Sale (Civil Code § 3412)

Cancellation of Deed

Wrongful Foreclosure

Fraud

Conspiracy to Commit Fraud

Intentional Infliction of Emotional Distress

Violation of CA Business and Professions Code

On 7/11/17, the court denied plaintiff’s ex parte application for order to show cause and temporary restraining order. On 7/31/17, DLI’s demurrer to the fifth and sixth causes of action was sustained; said causes of action were dismissed with prejudice at the time of the hearing. On 8/31/17, DLI filed its cross-complaint, asserting causes of action against plaintiff, Cross-Defendants Torok, Sandcastle and Roes 1-40 for:

Restitution Based on Unjust Enrichment

Equitable Indemnity and Attorneys’ Fees

Equitable Contribution

Declaratory Relief

Attorneys’ Fees and Damages Based on the Tort of Another

Wrongful Foreclosure

Negligence and Negligence Per Se

Negligent Misrepresentation

Rescission and Restitution Based on Mistake

Equitable Subrogation

On 9/18/17, plaintiff filed an “Amendment to Complaint,” wherein FCI Lender Services, Inc. was named in lieu of Doe 1. On 9/21/17, plaintiff filed her “Amended Notice of Pending Action.” On 10/23/17, the court denied plaintiff’s motion for preliminary injunction. On 10/24/17, CFI’s default was entered.

A Case Management Conference is set for 1/24/18.

Plaintiff Kathy Jones (“plaintiff”) now moves for an order granting her leave to file her proposed First Amended Complaint (“FAC”).

“The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading…” CCP § 473(a)(1); and see § 576. A motion for leave to amend must (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments, (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where (by page, paragraph and line number) the deleted allegations are located, and (3) state what allegations are proposed to be added to the previous pleading, if any, and where (by page, paragraph, and line number) the additional allegations are located. California Rules of Court (“CRC”) Rule 3.1324(a). Additionally, a separate declaration must accompany the motion and must specify (1) the effect of the amendment, (2) the reason why the amendment is necessary and proper, (3) the time when the facts giving rise to the amended allegations were discovered, and (4) the reasons why the request for amendment was not made earlier. CRC Rule 3.1324(b).

“While a motion to permit an amendment to a pleading to be filed is one addressed to the discretion of the court, the exercise of this discretion must be sound and reasonable and not arbitrary or capricious. Richter v. Adams [(1941)] 43 Cal.App.2d 184, 187; Eckert v. Graham [(1933)] 131 Cal.App. 718, 721. And it is a rare case in which ‘a court will be justified in refusing a party leave to amend his pleadings so that he may properly present his case.’ Guidery v. Green [(1892)] 95 Cal. 630, 633; Marr v. Rhodes [(1900)] 131 Cal. 267, 270. If the 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 and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion. Nelson v. Superior Court [(1950)] 97 Cal.App.2d 78; In re Estate of Herbst [(1938)] 26 Cal.App.2d 249; Norton v. Bassett [(1910)] 158 Cal. 425, 427.” Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.

Plaintiff’s motion reflects compliance with CRC Rule 3.1324(a). The declaration proffered by plaintiff’s counsel, Alaba S. Ajetunmobi (“Ajetunmobi”), however, does not reflect sufficient compliance with subsection (b).

Ajetunmobi attests that “[a]t the initial stage when I was consulted by plaintiff concerning this action, I requested for and she brought me papers that related to her complaint. In several pre-filing interviews I conducted with plaintiff she seemed confused and was not able to explain how the defendants came about the figures she was said to have owed and upon which the foreclosure of her property was based. She continued to maintain that she was given only $7,8885 [sic] from the $30,000 credit line. And to back up her story, she showed me a notarized declaration she had to sign when she received the money. But I found among the papers given to me an unsigned and undated Lender Disclosure Agreement with some figures which seemed to tally with the credit line defendants credited plaintiff received. I declare sincerely that, even then, plaintiff could not say with certainty when she received the agreement; whether they were some of the papers given to her by her bankruptcy attorney. Anyway, because the exaggerated figures in the agreement seemed to add up to the figures in the credit line, I naturally assumed that the baseline upon which the foreclosure figures came from was the lender disclosure agreement. I was mistaken. Since the complaint started, I sent some discovery requests to defendants (except DLI). To my surprise, the responses came back with disclosures that defendants were not relying on the figures in the lender disclosure agreement. They stated unequivocally that plaintiff was actually paid checks, $20,000 in the first instance and then $7,885, from the credit line. They went on to assert that they paid plaintiff’s delinquent property taxes and mortgage defaults to add to the money plaintiff received…These revelations came as a bug surprise to plaintiff. She continued to maintain that she never received more than $7,8885 [sic] from defendants and she never authorized defendants to pay, and that defendants never paid, her taxes and default mortgage payments….” (Ajetunmobi Decl., ¶¶ 2-8).

The court notes that plaintiff’s complaint is verified. The court further notes that plaintiff has failed to submit a declaration in support of this motion. She must submit a declaration with any renewed motion under these circumstances. As defendants note, it appears that plaintiff is attempting to circumvent the statute of limitations by deleting out various allegations regarding notice. The motion is denied without prejudice.