FOSTER v IRBC 2 PROPERTIES, LLC, et al

However, Plaintiff’s new attorney explains that the SAC, as written by the Plaintiff, was full of irregularities and other issues that it required him to essentially “start over” in terms of the pleading. The motion also lacks a declaration from Plaintiff’s counsel explaining when the new facts were learned and why the motion was not made sooner. That being said, the motion and memorandum of points and authorities, as well as the Declaration from William McAffrey (McAffrey Decl.”) provide some context for the amendments and why they were not made sooner.

Specifically, Plaintiff had been acting pro se throughout most of this litigation and only retained his new attorney, Mr. Atebata, in or around January 2026. According to the motion, Plaintiff’s attorney engaged in some discovery and then was inundated with multiple motions for summary judgment. When reviewing those motions, Plaintiff’s attorney determined that there were missing causes of action and necessary allegations to be made. Plaintiff also hired an expert in securities to review his documents and has provided Mr. McAffrey’s declaration in which he proffers that the foreclosure was highly irregular and that information is added to the pleadings. Additionally, the Court notes the (proposed) 3AC is attached as an Exhibit to the Motion to Continue, satisfactorily remedying the technical defect from the Court’s perspective.

The 3AC contains nine causes of action, most of which echo Plaintiff’s SAC, including causes of action which have already been sustained, without leave to amend, on demurrer. However, the proposed 3AC also brings a new cause of action for quiet title, is significantly more streamlined and cohesive in its factual allegations and narrative, and clarifies Plaintiffs’ basis for his claims. Plaintiff asserts that the amendments are necessary to “add and flesh out” additional causes of action to the lawsuit.” Plaintiff also argues that the parties remain in the discovery stage, no trial date has been set, and no prejudice will result from the proposed amendment.

Defendants argue they will suffer prejudice if the court allows leave to amend because Defendants already have pending motions for summary judgment/summary adjudication and an amended complaint would moot those motions. Defendants also complain that the TAC purports to bring three causes of action were already sustained, without leave to amend, in an earlier demurrer.

“The power to permit amendments is interpreted very liberally as long as the plaintiff does not attempt to state facts which give rise to a wholly distinct and different legal obligation against the defendant.” (Herrera v. Superior Court (1984) 158 Cal.App.3d 255, 259.) Indeed, it is “an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.) “A trial court has broad discretion to allow the filing of amendments to pleadings to conform to proof,” including “after a trial has been concluded” to conform to the proof. (Nelson v. Gaunt, 125 Cal. App. 3d 623, 636 (1981)).

The court is hesitant to excuse Plaintiff’s delays in seeking leave until after Defendants filed motions for summary judgment. Indeed, Plaintiff’s “explanation” for not seeking leave earlier is hard to ascertain given the lack of an attorney declaration and the difficulty parsing out the new allegations from Plaintiff’s prior (somewhat rambling) SAC. The Court is also aware of the unfairness to Defendants given the fact that they have moved for summary judgment and that Plaintiff’s late-filed motion essentially seeks to moot those motions.

Nevertheless, given the liberal policy of allowing amendments and allowing a party to proceed on the merits, and that Plaintiff sought leave to amend before the hearing on the motions for summary judgment, the court will grant Plaintiff leave to amend. (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1257 [“[I]f a plaintiff wishes to introduce issues not encompassed in the original pleadings, the plaintiff must seek leave to amend the complaint at or prior to the hearing on the motion for summary judgment.”].) Additionally, the Court notes the body of case law that holds that although a pro se litigant is held to the standard of an attorney, the Court must simultaneously endeavor to insure that a pro se litigant receives a fair day in Court

Accordingly, the Court grants leave file a Third Amended Complaint; the proposed 3AC is deemed to be filed and served on the date this motion is granted (Wiener v Superior Court (1976) 58 CalApp 3d 525, 528). However, the Court will allow (and even encourages) the parties to meet and confer to determine if they can stipulate to a Fourth Amended Complaint (“4AC”) that removes the causes of action for which demurrers were sustained without leave to amend – if there is any such agreement submitted to the Court, it must specify the date by which a 4AC must be filed. The Court notes that absent any such agreement it anticipates renewed demurrers as to these causes of action which are likely to be sustained and may be a basis for the imposition of sanctions in the nature of awarded attorney’s fees.

Defendants are correct in their assertion that allowing a TAC moots the MSJs, and therefore all MSJs are DENIED as moot, without prejudice to refile as to the TAC. The Motion to Continue MSJs is also DENIED as moot in light of the foregoing rulings.

The clerk shall provide notice of this ruling to the parties forthwith. Plaintiff to submit formal Orders complying with Rule 3.1312 in conformity with these Rulings.