Iretunde Akinsola, et al. v. John Finister, et al.

9:00 22CV408177 John Roe 1, et al. Order on Plaintiff John Roe 1’s 9 v. Motion to Sever John Roe 4’s Claims Doe Entity 1, et al. from John Roe 1’s claims, and retain August 24, 2026 Trial Date for John Roe 1

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After the hearing, the Court will prepare and file the formal Order.

9:00 23CV420753 Iretunde Akinsola, et al. Order on Defendant and Cross- 10 v. Complainant Lawrence Wu’s Motion John Finister, et al. for Leave to file a First Amended Cross-Complaint

See Line 10 below for complete tentative ruling.

After the hearing, the Court will prepare and file the formal Order.

9:00 24CV445335 Luc Rebboah Order on Settling Defendants’ 11 v. Application for Determination of Darrell P. Zazueta, et al. Good Faith Settlement

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After the hearing, the Court will prepare and file the formal Order.

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Case Name: Iretunde Akinsola, et al. v. John Finister, et al. Case No.: 23CV420753 Defendant and Cross-Complainant Lawrence Wu (“Wu”) moves under Code of Civil Procedure Sections 473(a), 426.50, and 576.5 for leave to file a First Amended Cross- Complaint in order to avoid a forfeiture for a cause of action upon such terms as the Court deems just and proper. Notice of Motion (the “Motion”) at 1:24-2:5 (filed: Dec. 23, 2025).

The Motion came on for hearing on August 19, 2026, at 9:00 AM in Department 16. After reviewing all the papers and the record, and giving counsel for all parties the full and fair opportunity to be heard, the Court finds and rules as follows.

I. FACTUAL AND PROCEDURAL BACKGROUND

This civil action arises from Plaintiffs’ allegations of mistreatment while they rented and occupied the real property located at 2552 Castleton Way in San Jose. Plaintiffs were tenants of Defendant Trenton Finister. The lease arrangements started in 2021 and were in place when Wu purchased the property at a foreclosure sale in July 2022.

The original Complaint in this action was filed August 11, 2023, naming John Finister, Trenton Finister, and Does 1 through 25; it did not name Wu. The First Amended Complaint was filed December 4, 2024, naming John Finister, Trenton Finister, Lawrence Wu, and Does 1 through 25.

On or about February 26, 2025, Wu filed a general denial to the Plaintiff’s first Amended Complaint, which his counsel says prevented his office from filing a FACC without a court order. Declaration of Defense Counsel Mark K. Oto in Support of Motion (“Oto Decl.”) at ¶ 2 (filed: Dec. 23, 2025).

On April 3, 2025, Wu demurred to the First Amended Complaint and, that same day, filed his original Cross-Complaint naming only Trenton Finister and Roes 1 through 20, inclusive, and seeking only indemnity and contribution.

Plaintiffs filed a Second Amended Complaint on or about September 30, 2025. In order to respond to the SAC, Wu’s counsel conducted research on the various issues involved.

On October 29, 2025, Wu’s counsel tendered Wu’s First Amended Cross-Complaint

to the clerk for electronic filing, along with Wu’s Demurrer to the SAC. Oto. Decl. at ¶ 6. Thereafter, the Wu FACC was rejected due to the prior filing of the general denial. Id. Wu’s counsel learned about the rejection upon a check of the Court file on or about November 17, 2025. Id.

On November 18, 2025, counsel contacted opposing counsel via email and solicited a stipulation to allow the filing. On December 17, 2025, counsel received a response from Carlos Martinez, counsel for Defendant Finister, indicating that he would stipulate to the Wu FACC. But no agreement was reached or made Plaintiffs’ counsel. Oto. Decl. at ¶ 7.

II. THE PROPOSED AMENDMENT

The proposed First Amended Cross-Complaint (“FACC”) seeks to add Iretunde Akinsola and Toluwalope Ayedegbe as Cross-Defendants alongside Trenton Finister. The proposed pleading retains the first two causes of action for indemnity and contribution against Trenton Finister and adds a third cause of action for holdover damages against Akinsola and Ayedegbe.

The proposed FACC alleges that Wu acquired title to the premises via a trustee’s sale of foreclosure on or about June 27, 2022. At the time of the foreclosure sale, Cross- Defendants Akinsola and Ayedegbe resided at the property and occupied the property until December 2022. The proposed FACC alleges that as a result of the foreclosure sale, Akinsola and Ayedegbe became tenants at sufferance and were not entitled to retain possession of the premises, and that Wu did not become their landlord and was not entitled to rent from them. The proposed FACC seeks holdover damages for the period from foreclosure until occupancy ended, alleging fair rental value in the range of $2,000- $3,500 per month.

III. LEGAL STANDARD

A. Applicable Statutes

California courts apply a liberal policy favoring amendment of pleadings.

Code of Civil Procedure Section 576 provides: “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 amendment of any pleading or pretrial conference order.” C.C.P. § 576. Section 473(a) provides that the “court may likewise, in its discretion, after notice to the adverse party, allow, upon such terms as may be just, an amendment to any pleading or proceeding in other particulars[.]” C.C.P. § 473(a).

For compulsory cross-complaints, Section 426.50 provides that a “party who fails to plead a cause of action subject to the requirements of the article may apply for leave to amend or file a cross-complaint at any time during the course of the action. The court, after notice to the adverse party, shall grant leave if the party who failed to plead acted in good faith. This subdivision shall be liberally construed to avoid forfeiture of causes of action.” C.C.P. § 426.50.

Cal. Rules of Court, rule 3.1324, imposes procedural requirements. Subdivision (a) requires that a copy of the proposed pleading be included with the moving papers and specification of the allegations to be added or deleted. Subdivision (b) requires a declaration showing (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amendment were discovered; and (4) why the request was not made earlier. C.R.C. 3.1324.

B. Recognized Exceptions: Futility and Undue Delay

Despite that liberal policy, leave to amend may be denied on two independent grounds. First, leave to amend may be denied where the proposed amendment is futile because it would be barred by the statute of limitations or fails to state a claim. Second, leave to amend may be denied where the moving party has unreasonably delayed seeking amendment to the prejudice of the opposing party, even if the statute of limitations has not run.

IV. ANALYSIS OF THE MOTION10

A. The Proposed Amendment is Futile Because It is Barred by the Statute of Limitations

The Court must first determine which statute of limitations applies to Wu’s proposed holdover damages claim. Wu contends that Code of Civil Procedure section 319 provides a five-year limitations period for claims arising out of title to real property, or to rents or profits out of the same. In contrast, Plaintiffs contend that section 338(b)’s threeyear period for trespass upon or injury to real property governs.

The California Supreme Court in Wilson v. Bittick (1965) 63 Cal.2d 30, 35 resolved this question. Wilson held: The applicable periods of limitation are three years for an action for trespass upon or injury to real property (Code Civ. Proc., § 338, subd. 2) and five years for an action for mesne profits (Code Civ. Proc., § 336). (Wilson v. Bittick (1965) 63 Cal.2d 30, 36.)

The distinction turns on the nature of the claim. Here, Wu seeks damages for wrongful occupation during a specific period (June 2022 through December 2022) by former occupants who have since vacated. Hence, as this is not an action for mesne profits incident to an ejectment action—Wu has not sought to eject Plaintiffs, who vacated voluntarily—the three-year period under section 338(b) applies.

For a continuing trespass, the limitations period does not begin to run until the trespass ends. As explained in Baugh v. Garl (2006) 137 Cal.App.4th 737, 745: where a

10 In analyzing this Motion, the Court did consider and give Judicial Notice as Wu and

Plaintiffs requested to court records in this case.

trespass is continuing, but not necessarily permanent, the statute does not bar an action until three years after the last act of trespass. (Baugh v. Garl (2006) 137 Cal.App.4th 737, 747.) Under Wu’s theory, each Plaintiff’s alleged wrongful occupation constituted a continuing wrong that ended on her respective move-out date.

Applying the three-year limitations period is straightforward: Plaintiff Akinsola is alleged to have resided at the Property to on or about December 2, 2022, making the limitations deadline December 2, 2025 (three years from December 2, 2022). Plaintiff Ayedegbe is alleged to have resided at the Property to on or about December 13, 2022, making his limitations deadline December 13, 2025 (three years from December 13, 2022). Here, the Motion was electronically filed on December 23, 2025, after both deadlines had passed. Hence, the applicable statute of limitations bars this claim.

B. The Proposed Amendment Does Not Relate Back

Wu requests that the amendment relate back to October 29, 2025, the date of his first attempted filing. Even if granted, this date does not save either claim: counsel tendered the Wu First Amended Cross Complaint to the clerk for electronic filing on or about October 29, 2025, but thereafter, the Wu FACC was rejected because of prior filing of the general denial. Under these circumstances, the rejected filing date provides no relation-back benefit.

The more fundamental question is whether the proposed FACC can relate back to Wu’s original Cross-Complaint filed April 3, 2025.

Under the modern rule articulated in Austin v. Mass. Bonding & Ins. (1961) 56 Cal.2d 596, 600: an amended complaint will be deemed filed as of the date of the original complaint provided recovery is sought in both pleadings on the same general set of facts. (Austin v. Mass. Bonding & Ins. (1961) 56 Cal.2d 596, 600.) This rule reflects a development which, in furtherance of the policy that cases should be decided on their merits, gradually broadened the right of a party to amend a pleading without incurring the bar of the statute of limitations. (Id.)

Wu’s April 3, 2025, Cross-Complaint named only Trenton Finister and Roes 1 through 20, inclusive, and sought only indemnity and contribution. It did not allege facts concerning Plaintiffs’ post-foreclosure occupancy. It did not seek affirmative relief based on that occupancy. It sought only to shift liability that might be imposed on Wu in the main action.

The proposed third cause of action of the FACC, by contrast, asserts an independent claim for affirmative monetary relief against Plaintiffs based on their alleged wrongful occupation between June and December 2022. This is a different transaction, a different set of operative facts, and a different theory of recovery. The original Cross- Complaint’s indemnity claims arise from Plaintiffs’ allegations in the main action that they were mistreated as tenants. The new holdover claim arises from Wu’s assertion that Plaintiffs’ post-foreclosure occupancy was wrongful.

In his Reply, Wu stresses that the occupancy of the Plaintiffs in the premises, i.e., the holdover, was acknowledged in the original Cross Complaint. Reply in Support 4:4-15. The Court respectfully disagrees. The Court has carefully reviewed the original Cross- Complaint filed April 3, 2025, which contains no allegations concerning Plaintiffs’ postforeclosure occupancy or any holdover theory. Rather, it alleges only that if Wu is found liable to Plaintiffs on their claims, he is entitled to indemnity and contribution from Trenton Finister.

The proposed amendment that is the FACC does not seek recovery on the same general set of facts as the original Cross-Complaint. It adds entirely new parties (Plaintiffs as cross-defendants) and an entirely new cause of action based on facts (post-foreclosure holdover) that were not pleaded in the original cross-complaint. Under settled California law, such an amendment does not relate back. (Austin v. Mass. Bonding & Ins. (1961) 56 Cal.2d 596, 600.)

The relation-back doctrine in Scholes v. Lambirth Trucking Co. (2017) 10 Cal.App.5th 590 confirms this conclusion. That case held: Unless an amended complaint relates back to a timely filed original complaint, it will be barred by the statute of limitations. (Scholes v. Lambirth Trucking Co. (2017) 10 Cal.App.5th 590, 597.) Under the relation-back doctrine, in order to avoid the statute of limitations, the amended complaint must rest on the same general set of facts as the general complaint, refer to the same accident and same injuries as the original complaint, and refer to the same instrumentality as the original complaint. (Id. at p. 598.) But the FACC does none of those things.

Here, the original cross-complaint sought indemnity for potential liability to Plaintiffs in the main action. The proposed amendment seeks affirmative holdover damages from Plaintiffs for their post-foreclosure occupancy. These are not the same general set of facts, the same injuries, or the same instrumentality. So the amendment does not relate back.

Because the proposed third cause of action is barred by the three-year statute of limitations under Code of Civil Procedure section 338(b), and because the proposed amendment does not relate back to the original cross-complaint, granting leave to amend would be futile. Accordingly, leave to amend is properly DENIED on this ground alone.

C. Wu Has Unduly Delayed Without Adequate Justification

Even if the statute of limitations did not bar the proposed amendment—and it does—the Court would still deny leave to amend on the independent ground of undue delay without adequate justification.

Wu purchased the property via foreclosure sale on or about June 27, 2022. Plaintiffs resided at the property and occupied it until December 2022. Wu has known the relevant facts—his acquisition of the property through foreclosure and Plaintiffs’ occupancy through December 2022—from the outset. Wu filed his original crosscomplaint on April 3, 2025, naming only Trenton Finister and seeking only indemnity and

contribution. Yet Wu’s counsel admits that Wu did not attempt to assert a holdover claim against Plaintiffs until October 29, 2025. Oto Decl. at ¶¶5-6. That is more than three years after Plaintiffs vacated the property, and more than six months after Wu filed the original cross-complaint.

The only explanation offered is that on approximately October 23, 2025, counsel located the case Aviel v. Ng (2008) 161 Cal.App.4th 809, which Wu’s lawyer states serves as the basis for Wu to sue the Plaintiffs for holdover damages. Oto Decl. at ¶ 3. Counsel states that at the time of filing the general denial, he did not know or understand that his client might hold claims for holdover damages due to Plaintiff’s occupation of the real property involved in the litigation. Id. at ¶2.

But that explanation identifies when counsel discovered a legal theory, not when counsel discovered facts giving rise to the claim. The belated discovery of a legal theory that was available from the outset of this litigation does not constitute good cause for delay under Rule 3.1324(b).

Moreover, the record reflects that in August 2022, Wu filed an unlawful detainer action concerning this same Property and this same holdover in Santa Clara County Superior Court Case No. 22CV403387. Pls.’ Memorandum in Opposition to Motion for Leave to Amend at 9:5-7. And, as Plaintiffs’ point out, Wu has offered no explanation for why a damages theory concerning the same holder was never raised in 2022, only appearing for the first time in October 2025, nearly three years later. Id. at 9:12-14.

In his Reply, Wu contends that Plaintiffs’ argument that Wu holds a judgment for the holdover period against Defendant Trenton Finister is incorrect. Wu says that he holds a stipulation for judgment against Trenton Finister for return of the Castleton property and damages. Reply in Supp. 2:1-8. The stipulation is viewed by Wu as noncollectible and hence, has not been reduced to a judgment. Id. But whether formally entered as a judgment or not, the stipulation document filed in November 2022 awarded Wu total holdover damages for this same property and time period. So this fact sharply undermines the Wu’s argument that his counsel first discovered the holdover damages theory in October 2025.

Also, Wu contends that there would be little prejudice allowing him to file the FACC now because no trial date has been set, trial setting is scheduled for December 2026, and Discovery remains open and no depositions have been taken. Reply in Supp. 3:1-6. But Plaintiffs have already litigated this matter for several years on the understanding that Wu’s Cross-Complaint sought only indemnity and contribution from co-defendant Trenton Finister—not an independent monetary claim against Plaintiffs personally. So allowing Wu to inject a new theory of direct liability against Plaintiffs at this late stage, on facts three to four years old, would necessarily require new discovery and cause complications in case management, thereby increasing costs to the parties and imposing additional burdens on the Court.

In sum, Wu has offered no legitimate justification for waiting nearly three years to

assert a claim built entirely on facts he has known since June 2022. This delay is unreasonable and prejudices Plaintiffs. So even if the statute of limitations bar did not exist here (and it does), leave to amend would be properly DENIED on this independent ground as well.

V. CONCLUSION AND ORDER

Wu’s Motion for Leave to File the FACC is DENIED on two independent grounds:

First, the proposed third cause of action is barred by the three-year statute of limitations under Code of Civil Procedure section 338(b). The limitations period expired on December 2, 2025, as to Plaintiff Akinsola and December 13, 2025, as to Plaintiff Ayedegbe. This Motion was filed December 23, 2025, after both deadlines expired. Moreover, the proposed amendment does not relate back to the original cross-complaint filed April 3, 2025, because it does not seek recovery on the same general set of facts—it adds new parties as cross-defendants and asserts an entirely new cause of action for affirmative relief based on facts not alleged in the original pleading. Under these circumstances, granting leave to amend would be futile.

Second, even if the statute of limitations did not bar the amendment (and it does), leave would be denied based on undue delay without adequate justification. Wu has known the relevant facts since June 2022. In November 2022, a stipulation for entry of judgment in an unlawful detainer action awarded Wu total holdover damages for this same property and time period. Wu provides no adequate explanation for delaying nearly three years to assert this theory against Plaintiffs—and this delay prejudices Plaintiffs who have litigated this case on a different understanding of the claims against them for years.

Accordingly, Wu’s Motion for Leave to File the FACC is DENIED.

SO ORDERED.

Date: August 19, 2026 Hon. Vincent I. Parrett Superior Court of the State of California, County of Santa Clara

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