Dumke v. Southside Realty Investments, LLC et al, No. 3:2020cv00935 - Document 30 (S.D. Cal. 2021)
Court Description: ORDER Granting 25 Motion for Leave to File an Amended Complaint. Plaintiff shall file an amended complaint within five (5) days of the Courts order. The hearing set on January 29, 2021 shall be vacated. Signed by Judge Gonzalo P. Curiel on 1/22/21. (dlg)
Download PDF
<![CDATA[
Dumke v. Southside Realty Investments, LLC et al Doc. 30 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 ANDREW B. DUMKE, Plaintiff, 11 12 v. 13 SOUTHSIDE REALTY INVESTMENTS, LLC 14 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT [Dkt. No. 25.] Defendant. 15 16 Case No.: 20-cv-0935-GPC-LL Before the Court is Plaintiff’s motion for leave to file an amended complaint. (Dkt. No. 25.) Defendant filed an opposition and Plaintiff replied. (Dkt. Nos. 27, 29.) Based on the reasoning below, the Court GRANTS Plaintiff’s motion for leave to file an amended complaint. Background On May 19, 2020, Plaintiff Andrew Dumke (“Plaintiff”) filed a complaint against Southside Realty Investments, LLC (“Defendant”) alleging state law claims for (1) wrongful injury to trees, (2) trespass, (3) nuisance, (4) ejectment, and (5) quiet title. (Dkt. No. 1, Compl. ¶¶ 18-52.) Plaintiff is the owner of real property located at 2052 Via Casa Alta in La Jolla, California. (Id. ¶ 8.) Defendant is the owner of real property located at 2042 Via Casa Alta in La Jolla, California which is adjacent to Plaintiff’s property. (Id. ¶ 9.) 1 20-cv-0935-GPC-LL Dockets.Justia.com 1 Since October 2003, Defendant has attempted to remodel the existing single-family 2 residence located on the property which has progressed in fits and starts but the progress 3 of the remodel of the home progressed more rapidly over the past three years and appears 4 to be near completion. (Id. ¶¶ 11, 12.) According to the complaint, Plaintiff’s property included a climbing fig, Ficus 5 6 Pumila, hedge (“Ficus Hedge”), that ran along the boundary between Plaintiff and 7 Defendant’s properties. (Id. ¶ 10.) The Ficus Hedge afforded both owners a screen 8 between the properties so each could enjoy some privacy. (Id.) Plaintiff alleges during 9 the remodel, laborers of Defendant entered Plaintiff’s property without his permission 10 and trimmed and cut the branches of the Ficus Hedge which destroyed the privacy 11 between the two properties. (Id. at ¶¶ 12, 13.) Plaintiff also alleges Defendant continued 12 to trespass on Plaintiff’s property in the course of Defendant’s remodel by running heavy 13 equipment along the length of the Ficus Hedge, storing construction debris, materials, 14 and waste on his property, and dug a trench on his property. (Id. at ¶ 14.) Further, 15 Plaintiff asserts Defendant constructed a capped wall in which a seven-inch portion was 16 built on Plaintiff’s property and in the City of San Diego’s right of way. (Id. ¶ 15.) 17 Defendant filed an answer and counterclaim on July 17, 2020. (Dkt. No. 9.) On 18 August 6, 2020, Plaintiff filed an answer to the counterclaim. (Dkt. No. 12.) On 19 September 4, 2020, the Magistrate Judge issued a scheduling order designating a deadline 20 of November 13, 2020 to file any motions to amend the pleadings. (Dkt. No. 18.) 21 On November 12, 2020, Plaintiff timely filed a motion for leave to file an amended 22 complaint (“FAC”). (Dkt. No. 25.) Plaintiff seeks to add a cause of action that 23 Defendant violated the California Coastal Act (“CCA”) due to the manner in which 24 Defendant constructed its home. (Id. at 7.1) Defendant filed its opposition2, (Dkt. No. 25 26 27 28 1 Page numbers are based on the CM/ECF pagination. Defendant also argues that the City of San Diego has reviewed Defendant’s permits, revisions, and plans, and the City should have the opportunity to perform its regulatory functions in order to determine 2 2 20-cv-0935-GPC-LL 1 27), and Plaintiff replied. (Dkt. No. 29.) 2 3 Discussion A. Federal Rule of Civil Procedure 15 4 Under Federal Rule of Civil Procedure (“Rule”) 15(a), leave to amend a complaint 5 after a responsive pleading has been filed may be allowed by leave of the court and “shall 6 freely be given when justice so requires.” Foman v. Davis, 371 U.S. 178, 182 (1962); 7 Fed. R. Civ. P. 15(a). Granting leave to amend rests in the sound discretion of the trial 8 court. See Internat’l Ass’n of Machinists & Aerospace Workers v. Republic Airlines, 761 9 F. 2d 1386, 1390 (9th Cir. 1985). This discretion must be guided by the strong federal 10 policy favoring the disposition of cases on the merits and permitting amendments with 11 “extreme liberality.” DCD Programs Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987). 12 Because Rule 15(a) favors a liberal policy, the nonmoving party bears the burden 13 of demonstrating why leave to amend should not be granted. Genentech, Inc. v. Abbot 14 Labs., 127 F.R.D. 529, 530-31 (N.D. Cal. 1989). In assessing the propriety of an 15 amendment, courts consider five factors: (1) undue delay; (2) bad faith or dilatory 16 motive; (3) repeated failure to cure deficiencies by amendments previously permitted; (4) 17 prejudice to the opposing party; and (5) futility of amendment. Foman, 371 U.S. at 182; 18 United States v. Corinthian Colleges, 655 F.3d 984, 995 (9th Cir. 2011). The Foman 19 factors are not equally weighted; the possibility of delay alone, for instance, cannot 20 justify denial of leave to amend, DCD Programs, 833 F.2d at 186, but when combined 21 with a showing of prejudice, bad faith, or futility of amendment, leave to amend will 22 likely be denied. Bowles v. Reade, 198 F.3d 752, 758 (9th Cir. 1999). The single most 23 important factor is whether prejudice would result to the non-movant as a consequence of 24 the amendment. William Inglis & Sons Baking Co. v. ITT Continental Baking Co., 668 25 F.2d 1014, 1053 (9th Cir. 1981). 26 27 28 Defendant’s compliance. (Dkt. No. 27 at 4-5.) If Defendant wishes to seek a stay, it may do so through a motion and not through an opposition to the FAC. 3 20-cv-0935-GPC-LL 1 2 B. Analysis Plaintiff moves to add a claim under the CCA after it further investigated 3 Defendant’s construction activities and argues that the Foman factors support his motion. 4 (Dkt. No. 25.) Defendant responds that the motion for leave to amend is sought in bad 5 faith, will prejudice Defendant, and the amendment would be futile. 6 i. Undue Delay 7 Defendant does not argue that Plaintiff’s motion was unduly delayed. Because the 8 motion was filed before the deadline imposed by the scheduling order, the Court finds 9 that there is no showing of undue delay. 10 ii. 11 Defendant suggests that Plaintiff is acting in bad faith by “using the FAC to force 12 Southside to incur extensive legal fees and capitulate to Plaintiff’s settlement demands.” 13 (Dkt. No. 27 at 5.) Plaintiff contends that he has a good faith belief Defendant has 14 violated the CCA, which provides a private right of action. (Dkt. No. 25 at 9.) 15 Bad Faith Bad faith is shown when “the plaintiff merely is seeking to prolong the litigation 16 by adding new but baseless legal theories.” Griggs v. Pace AM. Grp., Inc., 170 F.3d 877, 17 881 (9th Cir. 1999) (citations omitted). 18 Here, Defendant provides no legal authority that incurring additional legal fees to 19 defend added claims constitute bad faith. In fact, one court has rejected such an 20 argument. See Knature Co., Inc. v. Duc Heung Group, Inc., Case No. CV 20-3877- 21 DMG (AFMx), 2020 WL 7231119, at *2 (C.D. Cal. Oct. 29, 2020) (rejecting bad faith 22 argument that the “case is small and damages are none or little” and the amendment is 23 merely designed to expand the case and incur additional costs). Here, Defendant has 24 failed to show that bad faith or dilatory motive underlies Plaintiff’s request to amend. 25 See Howey v. United States, 481 F.2d 1187, 1190-91 (9th Cir. 1973) (“Where there is a 26 lack of prejudice to the opposing party and the amended complaint is obviously not 27 frivolous, or made as a dilatory maneuver in bad faith, it is an abuse of discretion to deny 28 such a motion”). 4 20-cv-0935-GPC-LL 1 iii. 2 Defendant appears to argue prejudice maintaining that an FAC would significantly Prejudice 3 expand litigation, thereby increasing litigation costs, despite the parties’ extensive 4 settlement discussions. (Dkt. No. 27 at 4-5.) Plaintiff disagrees. 5 Courts have typically found that the “prejudice factor” under Rule 15 “carries the 6 greatest weight.” Eminence Capital, L.L.C. v. Aspeon, Inc., 316 F.3d 1048 1051 (9th Cir. 7 2003). Substantial prejudice exists when the claims sought to be added “would have 8 greatly altered the nature of the litigation and would have required defendants to have 9 undertaken, at a late hour, an entirely new course of defense.” SAES Getters S.p.A. v. 10 Aeronex, Inc., 219 F. Supp. 2d 1081, 1086 (S.D. Cal. 2002). But “neither delay resulting 11 from the proposed amendment nor the prospect of additional discovery needed by the 12 non-moving party in itself constitutes a sufficient showing of prejudice.” Tyco Thermal 13 Controls LLC v. Redwood Industrials, No. C 06-07164 JF (RS), 2009 WL 4907512, at *3 14 (N.D. Cal. Dec. 14, 2009) (citing Genentech, Inc., 127 F.R.D. at 530-32); see also 15 Nissou-Rabban v. Capital One Bank (USA), N.A., 285 F. Supp. 3d 1136, 1145 (S.D. Cal. 16 2018) (opining that the “expenditure of additional monies or time do not constitute undue 17 prejudice.”). In addition, courts have often held that no prejudice exists when motion for 18 leave to amend is brought “at an early stage in the proceedings.” SAP Aktiengesellschaft 19 v. i2 Techs., Inc., 250 F.R.D. 472, 474 (N.D. Cal. 2008). 20 Here, Defendant has not demonstrated prejudice and its reliance on BNSF Ry. Co. 21 v. San Joaquin Valley R.R. Co., No. 1:08-CV-01086-AWI, 2011 WL 3328398, at *2 22 (E.D. Cal. 2011) is not persuasive. (Dkt. No. 27 at 4.) In BNSF Ry. Co., the defendant 23 sought leave to amend the counterclaim at the close of discovery and the court concluded 24 that it could have filed the motion earlier and unduly delayed in seeking leave to amend. 25 Id. at *3. Therefore, the court found prejudice to the plaintiff stating that allowing the 26 amendment would result in the re-opening of discovery where “the scope of discovery . . 27 .was nationwide, requiring attorneys for both parties to travel substantial distances and 28 expend substantial time to depose witnesses and to secure other discovery.” Id. at *4 5 20-cv-0935-GPC-LL 1 (“Discovery or other litigation costs become prejudicial only when the additional costs 2 could easily have been avoided had the proposed amendments been included within the 3 original pleading.”). 4 This case is in its early stages and the motion for leave to amend was timely filed 5 under the scheduling order. Further, the proposed amendment does not resemble the sort 6 of “radical shift in direction… tenuous nature, and the inordinate delay” that the Ninth 7 Circuit has found prejudicial. See Morongo Band of Mission Indians v. Rose, 893 F.2d 8 1074, 1079 (9th Cir. 1990). Accordingly, the Court concludes that Defendant has not 9 borne its burden of showing that granting leave to amend will result in prejudice. 10 iv. 11 As Plaintiff posits, and this Court agrees, that although Defendant has not directly 12 argued that the FAC would be futile, its citation to Ronnie Aliezer’s declaration seems to 13 suggest otherwise. (Dkt. No. 27 at 2.) Ronnie Aliezer, as a managing member of 14 Defendant, states that he “informed and believe[s] [defendant’s] development complies 15 with all applicable regulations.” (Dkt. No. 28.) Plaintiff replies that the declaration 16 raises a disputed issue of fact based on information and belief and does not address 17 whether the amendment would be futile. (Dkt. No. 29.) 18 Futility Amendments can be considered futile when “no set of facts can be proved under 19 the amendment to the pleadings that would constitute a valid claim or defense.” Missouri 20 ex rel. Koster v. Harris, 847 F.3d 646, 656 (9th Cir. 2017) (internal quotation omitted). 21 Examples of futile amendments include those that are “duplicative of existing claims or 22 patently frivolous.” Murray v. Schriro, 745 F.3d 984, 1015 (9th Cir. 2014). In other 23 words, district courts have held than an amendment is futile “only if it would clearly be 24 subject to dismissal.” SAES Getters S.P.A. v. Aeronex, Inc., 219 F. Supp. 2d 1081, 1086 25 (S.D. Cal. 2002) (emphasis added). 26 Here, Defendant only disputes the merits of the CCA claim without demonstrating 27 that no set of facts could be proven to support a CCA claim or that such a claim is legally 28 not cognizable. Moreover, denial of leave to amend for futility is disfavored since courts 6 20-cv-0935-GPC-LL 1 typically defer consideration on the merits until after an amended pleading has been filed. 2 See, e.g., Green Valley Corp. v. Caldo Oil Co., No. 09-CV-04028-LHK, 2011 WL 3 1465883, at *6 (N.D. Cal. 2011) (pointing out that there is a “general preference against 4 denying a motion for leave to amend based on futility”); Allen v. Bayshore Mall, 12-CV- 5 02368-JST, 2013 WL 6441504, at *5 (N.D. Cal. 2013) (“The merits or facts of a 6 controversy are not properly decided in a motion for leave to amend and should instead 7 be attacked by a motion to dismiss for failure to state a claim or for summary judgment.”) 8 (internal quotations omitted). Accordingly, Plaintiff has failed to demonstrate futility. 9 Overall, the Foman factors weigh in favor of permitting Plaintiff to amend his 10 complaint. Given the strong federal policy favoring amendments due to a preference for 11 resolving cases on the merits, DCD Programs, Ltd., 833 F.2d at 186, the Court GRANTS 12 Plaintiff’s motion for leave to file an amended complaint. 13 Conclusion 14 Based on the above, the Court GRANTS Plaintiff’s motion for leave to file an 15 amended complaint. Plaintiff shall file an amended complaint within five (5) days of the 16 Court’s order. The hearing set on January 29, 2021 shall be vacated. 17 18 IT IS SO ORDERED. Dated: January 22, 2021 19 20 21 22 23 24 25 26 27 28 7 20-cv-0935-GPC-LL
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
