2017-00208161-CU-OR

Nicole Kelly vs. Pennymac Loan Services, LLC

Nature of Proceeding: Motion to File 2nd Amended Complaint

Filed By: Artinian, Vartkes

Plaintiff’s Motion to File the proposed Second Amended Complaint is denied.

On November 3, the Court sustained MTC Financial Inc’s demurrer to the FAC, without leave to amend. MTC has been dismissed from the action and is no longer a party. (See Notice of Entry of Judgment December 5, 2017, ROA #54, #55) Therefore, it was improper for plaintiff to name MTC in the Second Amended Complaint.

On November 6, 2017 the court sustained Pennymac’s demurrer to the causes of action for Quiet Title and Intentional Infliction of Emotional Distress, with leave to amend. After oral argument, plaintiff was given until December 6, 2017 to file a Second Amended Complaint (“SAC”). No SAC was filed by December 6, 2017 although it appears that a copy of an SAC was served on the defendants. On December 18, 2017, plaintiff filed this Motion for Leave to file a Second Amended Complaint. On December 21, 2017, the court clerk rejected from filing a Second

Amended Complaint stating that there was no court order allowing the filing of an SAC.

The proposed Second Amended Complaint attached to this motion names both Pennymac and the party that has been dismissed from the action, MTC Financial, Inc. The motion provides no explanation as to why the proposed SAC contains a party in whose favor a judgment of dismissal has been entered.

The motion does not comply with Rule 3.1324. A motion to amend a pleading must include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments, 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 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. The motion does not comply with the language in bold above. The motion must also be accompanied by a supporting declaration that specifies the effect of the amendment, why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and the reasons why the request for amendment was not made earlier. Counsel’s declaration is silent on this issue, making no reference to the Court’s ruling on the demurrer.

Moreover, the motion does not state how this pleading is different from the FAC. Counsel states that “it is necessary… because defendant’s have not proven their beneficial interest in the real property in question.” This statement does not comply with the specific requirements set forth in the rule of court.

Defendant Pennymac, in opposition, opposes the motion on the basis that plaintiff’s never filed their SAC as ordered by the court in ruling on the November 6, 2017 demurrer to the FAC. No SAC was filed by the due date, December 6, 2017, although plaintiff faxed a proposed SAC to Pennymac on December 6, 2017 (not the same SAC as attached to this motion). Pennymac states that no changes have been made to the IIED claim, to which the demurrer was sustained. Pennymac contends that since plaintiff’s IIED claim remains unchanged from the IIED claim to which the demurrer was sustained, the defects cannot be cured and that cause of action should be dismissed.

Pennymac requests guidance from the court as to whether it should respond to the FAC, the First SAC (which they received on December 6, 2017 but which was never filed) or the Second SAC that is attached to the proposed motion.

Due to the fact that the Court previously granted leave to amend to file a Second Amended Complaint, and because the clerk rejected a proposed SAC at the filing counter despite the court order, the Court is allowing plaintiff one additional opportunity to file a Second Amended Complaint on or before January 31, 2018.

Given that MTC has been dismissed, the allegations as to MTC shall be removed from the SAC.

Pennymac shall have 30 days from the service of the Second Amended Complaint (35 days if served by mail) to respond.