Ray Briare vs Timothy G Briare

Case Number

22CV00060

Case Type

Hearing Date / Time

Mon, 03/25/2024 - 10:00

Nature of Proceedings

Motion: Amend

Tentative Ruling

Raymond Briare v. Timothy G. Briare                   

Case No. 22CV00060     

Hearing Date: March 25, 2024                                        

HEARING:              Plaintiff Raymond Briare’s Motion for Leave to Amend Complaint

ATTORNEYS:        For Plaintiff Raymond Briare: Self-Represented

                        For Defendant Timothy G. Briare: Self-Represented            

TENTATIVE RULING:

Plaintiff’s motion for leave to amended complaint is denied.

Background:

This action commenced on January 7, 2022, by the filing of an unlawful detainer complaint by plaintiff Raymond Briare (“plaintiff”) against his son, defendant Timothy Briare (“defendant”). By way of the original complaint, plaintiff alleges that defendant resides at premises located at 7149 Armstrong Rd., Goleta. (Complaint, ¶¶ 1-3.) On October 1, 2019, defendant agreed to rent the premises on a month-to-month tenancy, for $0 in rent pursuant to an oral agreement. (Complaint, ¶ 6.) On November 19, 2021, the agreement was modified to require defendant to get a job. (Ibid.) The tenancy was terminated for at-fault just cause. (Complaint, ¶ 8.) Specifically, plaintiff claims that defendant failed to obtain a job of at least 20 hours per week, paying at least $300 per week. (Complaint, Exh. 2.)

On February 18, 2022, the parties entered into a stipulation whereby defendant agreed to look for work by contacting a decision-maker at a prospective employer not fewer than three times per day Monday through Friday and by 6 p.m. each evening defendant was to present to plaintiff a written account of each of defendant’s employment-seeking attempts.

At a settlement conference of March 2, 2022, plaintiff reported that defendant had found work so the settlement agreement had been fulfilled. The trial date was vacated.

Plaintiff now moves to file an amended complaint on the grounds that defendant is no longer in compliance with the terms of the parties’ settlement agreement.

The motion was served via mail on February 29, 2024. Defendant has not filed opposition or any other response to the motion.

Analysis:

Pursuant to Code of Civil procedure section 473(a)(1), the court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading. The court’s discretion will usually be exercised liberally to permit amendment of the pleadings. (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.)

“Generally, leave to amend must be liberally granted [citation], provided there is no statute of limitations concern, nor any prejudice to the opposing party, such as delay in trial, loss of critical evidence, or added costs of preparation. [Citation.]” (Solit v. Tokai Bank (1999) 68 Cal.App.4th 1435, 1448.)

“(a) Contents of motion

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.

“(b) Supporting declaration

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.

“(c) Form of amendment

The court may deem a motion to file an amendment to a pleading to be a motion to file an amended pleading and require the filing of the entire previous pleading with the approved amendments incorporated into it.

“(d) Requirements for amendment to a pleading

An amendment to a pleading must not be made by alterations on the face of a pleading except by permission of the court. All alterations must be initialed by the court or the clerk.” (Cal. Rules of Court, rule 3.1324.)

Plaintiff’s motion is procedurally deficient because it does not comply with the above requirements.

The motion also fails on substantive grounds. An amended complaint concerns the same general facts as the original complaint. A supplemental complaint serves a different purpose. “Primarily, a supplemental complaint deals with matters occurring after commencement of the action and it only sets up matters consistent with the original complaint.” (ITT Gilfillan, Inc. v. City of Los Angeles (1982) 136 Cal.App.3d 581, 586.) “Matters which occur after the filing of a complaint may not be alleged by amendment to the complaint, but must be brought into the action by means of a supplemental complaint.” (Hebert v. Los Angeles Raiders, Ltd. (1991) 23 Cal.App.4th 414, 426.)

What plaintiff is seeking is to file a supplemental complaint rather than to amend the original complaint. The original complaint was based on alleged facts existing in late 2021 and early 2022. The new complaint is based on alleged facts occurring in 2024. While at both times the allegation was that defendant needs to obtain employment, the complaints are based on different periods of defendant’s unemployment as well as two different 3-day notices. Plaintiff represented to the court on March 2, 2022, that defendant had found work. At that point, the case, based on the allegations of the first complaint and the 3-day notice attached thereto, should have been dismissed without prejudice.

“It is a settled rule of our law that the plaintiff's right of action must exist when he commences his action. [Citation.] The plea that an action is prematurely brought is a perfect defense to the merits. [Citation.] The defect cannot even be cured by a supplemental complaint founded on what subsequently occurred.” (Gardner v. Shreve (1949) 89 Cal.App.2d 804, 810.) Hence, in this situation, a supplemental complaint in the original action would not suffice.

Plaintiff’s motion will be denied. This ruling does not prevent plaintiff from bringing a second, separate, action for unlawful detainer should he so choose.