Motion of Plaintiff Michael Gemignani for Leave to File First Amended Complaint
July 7, 2026 Law and Motion Calendar PAGE 16 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________
2:00 PM LINE 6 26-UDL-00037 MICHAEL GEMIGNANI VS. THOMAS LEBEAU, ET AL.
MICHAEL GEMIGNANI GRANT H. BAKER THOMAS LEBEAU PRO SE
MOTION OF PLAINTIFF MICHAEL GEMIGNANI FOR LEAVE TO FILE FIRST AMENDED COMPLAINT
TENTATIVE RULING:
Initially, the court notes that Plaintiff has not provided the address for the hearing. Department 4 is located at the Southern Courthouse, Courtroom 4C, 400 County Center, Redwood City, CA 94063. (See Cal. Rules of Court, Rule 3.1110 [the Notice “must specify” the location of the hearing].)
The unopposed Motion for Leave to File First Amended Complaint (the “Motion”) brought by Plaintiff Michael Gemignani is DENIED without prejudice.
The Motion Is Fatally Defective. Proofs of service must be filed five court days before the hearing. No proof of service of the moving papers appears in the Court’s records. Therefore, Defendants did not receive proper notice of the hearing date and the Court must deny the Motion for lack of jurisdiction. (Diaz v. Professional Community Management, Inc. (2017) 16 Cal.App.5th 1190, 1204-1205 [“the court lacks jurisdiction to rule on a motion that has not been properly noticed for hearing on the date in question.” (citations omitted)].)
Further: [P]roof of service fulfills the function of establishing that “procedures implementing the constitutional requirements of due process were followed giving assurance that service really has been made.” Accordingly, when adequate proof of service is available, it is of no legal import that a party actually may not have received notice. That being the case, the courts are very strict in applying the statutory standards for proof of service; failure to strictly comply with those standards deprives the court of jurisdiction to act. (
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The Proposed First Amended Complaint Is Fatally Defective. Subject to any opposition credited by the court, the Court was prepared to grant the unopposed Motion once proper service on all parties were demonstrated, or Defendants were to indicate their lack of opposition to the Motion. In such case, if Plaintiff has properly served the Motion, Plaintiff would be properly to contest, file, serve, and email Department 4 by 10:00 a.m. on July 7, 2026, the documents showing proper service, or if Defendants were not to oppose the Motion, they would be to email Department 4 by 10:00 a.m. on July 7, 2026, that they do not contest the granting the Motion and waive notice, and Plaintiff would be to appear at the hearing. If one of these conditions were not to occur, then the Court would deny the motion without prejudice.
July 7, 2026 Law and Motion Calendar PAGE 17 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________
However since the motion is procedurally defective, the Court points out that there are substantive defects in the proposed First Amended Complaint which might not stop the motion to amend being granted, but would be subject to a demurrer being sustained and thus the Court denies the motion without prejudice.
The proposed First Amended Complaint (“FAC”) is defective, in that it fails to attach the indicated cause of action for breach of contract as required. (Proposed FAC, box 8, at Baker Decl., p.5, in Exh. A (“The following causes of action are attached and the statements above apply to each (each complaint must have one or more causes of action attached)” (emphasis in original)).)
Also, without exhibit markers, the FAC appears to attach not only the lease and its addenda, but also multiple pages regarding an insurance policy, which pages were not attached to the Complaint. (See Baker Decl., pp.17-32, in Proposed FAC, Exh. A.) These pages also appear at the end of Exhibit 1 to Plaintiff’s Declaration, which is declared to show the lease. (See Gemignani Decl., ¶ 2, pp.15-30, in Exh. 1.)
For all of these reasons, the Motion is DENIED without prejudice.
If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiff shall prepare for the Court’s signature a written order consistent with the Court’s ruling, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and by the California Rules of Court.
POSTED: 3:00 PM