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Tentative Ruling
Judge Colleen Sterne
Department 5 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107


Mary Morris vs Mansour Rofeh

Case No: 1416561
Hearing Date: Mon Jan 27, 2014 9:30

Nature of Proceedings: Motion to Amend Complaint

Case: Mary Sandra Morris v. Mansour Rofeh, Case No. 1416561 Hearing Date: January 27, 2014 Motion: Motion to Amend Complaint Tentative Ruling: For the reasons set forth herein, the motion of plaintiff Mary Sandra Morris to file an amended complaint is denied without prejudice. Discussion: In the original complaint in this action, plaintiff Mary Sandra Morris alleges that she lent $190,000 to defendant Mark Rofeh (erroneously sued as Mansour Rofeh), which amount remains unpaid. (Complaint, ¶ 5, 8.) Morris filed her complaint on April 10, 2013, asserting two causes of action: (1) breach of contract and (2) money lent and paid. According to Morris, Rofeh recently asserted for the first time at his deposition that he had never received the funds in 2003 even though he made interest payments on her loan for over 8 years. (Motion, at p. 2.) Morris now brings this motion to amend the complaint to add a cause of action for account stated. This motion was filed, and served by mail, on December 31, 2013. No opposition has been filed to this motion. Trial is now set for April 21, 2014. Analysis: “Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.” (Code Civ. Proc., § 576; accord, § 473, subd. (a)(1).) “A motion to amend a pleading before trial 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.” (Rules of Court, rule 3.1324(a).) Morris attaches a copy of the proposed amended complaint and states only that it adds a new cause of action for account stated. An inspection of the proposed amended complaint discloses that the new cause of action is added as the third cause of action, but it is not identified except as “a new cause of action for account stated.” (Motion, at p. 1.) “A separate declaration must accompany the motion and must specify: “(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.” (Rules of Court, rule 3.1324(b).) Morris includes the declaration of Bruce W. Hogan on page three of the motion. The sole facts declared are: “Plaintiff has learned facts since the original complaint was filed which support the amendments requested by this motion. This action has not yet been set for trial, and defendant will suffer little or no prejudice if plaintiff is allowed to amend the complaint as requested.” (Hogan decl., ¶ 2.) The first (and only other) paragraph of the declaration states that Hogan has personal knowledge of the facts set forth in the declaration and could competently testify as to those facts. The motion, including the declaration, was filed on December 31, 2013. On November 18, 2013, more than a month before Hogan’s declaration, the court set trial in this matter for April 21, 2014. Hogan was present at that case management conference; Hogan personally signed a notice of entry of the case management order which separately states that the matter was set for trial. His declaration that no trial has been set is plainly wrong. This two sentence statement of facts fails to, and really makes no attempt to, comply with Rules of Court, rule 3.1324(b). Facts supporting the motion are stated in the motion, but are only vaguely referenced in the declaration. The declaration does not state any specific facts, does not explain why the amendment is proper, does not explain when the facts giving rise to the amended allegations were discovered, and does not explain why the request was not made sooner. Indeed, the only specific fact declared—that no trial date has been set—is demonstrably incorrect. Apart from the failure of the motion to comply with the provisions of the Rules of Court, the motion is also untimely. This hearing is January 27, 2014. The motion was served by mail on December 31, 2013. A motion must be filed and served at least 16 court days prior to the hearing. (Code Civ. Proc., § 1005, subd. (b).) The day 16 court days before January 27, 2014, was January 2, 2014 (with one intervening court holiday). The notice period is further extended by five calendar days where service is by mail. (Ibid.) Five calendar days prior to January 2, 2014, was Saturday, December 28, 2013. Service by mail on Tuesday, December 31, 2013, does not provide timely notice. No opposition has been filed to this motion, so Rofeh cannot be deemed to have waived the notice problem. Accordingly, the court will deny Morris’s motion without prejudice to Morris filing a new motion complying with the Code of Civil Procedure and the California Rules of Court.
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