Plaintiff’s motion for leave to file First Amended Complaint; Plaintiff’s motion for determination of validity and enforceability of 10/6/21 contract to make a will/devise; Plaintiff’s motion for summary judgment/adjudication
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NICHOLAS v LEMP
PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT; PLAINTIFF’S MOTION FOR DETERMINATION OF VALIDITY AND ENFORCEABILITY OF 10/6/21 CONTRACT TO MAKE A WILL/DEVISE; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
These matters involve real property disputes between Danny E. Nicholas (“Plaintiff”) and Lani Arellanes (“Arellanes”) and Cathy Lemp (“Lemp.”) On Now before the Court are multiple motions: 1) Plaintiff’s motion for leave to file a First Amended Complaint, 2) Plaintiff’s motion for summary adjudication; and 3) Plaintiff’s motion to determine the validity of contract/will.
I.
Background
Facts1
In or around October 24, 2021, Plaintiff entered into an agreement with Lani Arellanes (now deceased) which appears to have been memorialized in a handwritten document prepared and signed by Arellanes (“Agreement”) (Petition to Void TOD, Ex. 1.) Pursuant to this Agreement, Plaintiff would build a 3-bedroom home for Arellanes on her property located at 2608 Arrowhead Street (“Arrowhead Property.”) Arellanes would provide all materials and tools. In exchange, Arellanes would give Plaintiff a $53,000 valued 1.1 acre property located at 2044 Yolo Court (“Yolo Property.”) The Agreement also stated:
Should I become disabled or deceased or unable to complete this project to “occupancy” all properties 2044 Yolo Court and 2608 Arrowhead Street will become the property of Danny E. Nicholas to complete his project at Yolo Court. Neither his children nor mine are entitled to either property.
1 The necessary facts to understand the pending motions are drawn from both filed cases.
Things apparently went awry in this relationship. On May 19, 2023, Plaintiff filed a lawsuit against Arellanes (Case No. 23CV46746) (“Case One”) for breach of contract, common counts and fraud. Plaintiff alleges essentially that Arellanes barred him from returning to the Arrowhead Property, thereby preventing him from finishing the job, and failed to pay him for any of the materials or labor he provided. He further alleges that she never transferred the interest in the Yolo Property. In Case One, Plaintiff seeks $116,260 in damages and filed a lis pendens on the Arrowhead Property to prevent Arellanes from selling it.
On September 10, 2025, Plaintiff filed a lawsuit against Cathy Lemp (Calaveras County Case No. 25CV48280) (“Case Two”) to void a Transfer on Death deed (“TOD”). Specifically, Plaintiff sought to void the TOD which purported to transfer the Arrowhead Property from Arellanes to Lemp. The TOD appears to have been prepared by the law firm of J Pink Law, was witnessed by Jay Pink, Esq. (“Pink”), and was recorded on May 31, 2022. Plaintiff has also filed a Petition to Determine Succession to Primary Residence pursuant to Probate Code sections 13151 and 13152 in Case Two.
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According to Plaintiff, Lemp quitclaimed the TOD for the Arrowhead Property to nonparty Shane Miranda (“Miranda.”) The cases are consolidated.
II. Legal Standard and Discussion
A. Motion for Leave to File First Amended Complaint
Plaintiff seeks leave to file a First Amended Complaint (“FAC”) to add Shane Miranda as a party to this matter.2 The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading. (Code Civ. Proc. §§ 473 &576.) Generally, leave to amend should be granted liberally. (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 488- 489.)
2 Plaintiff routinely includes Shane Miranda in the caption of his pleadings in this case but Mr. Miranda has never been a party to this matter.
A motion to amend a pleading before trial must include a copy of the proposed amendment or amended pleading. (Cal. Rules of Court, Rule 3.1324, subd. (a)(1).) The motion must also be supported by a declaration which specifies the following: (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. (Cal. Rules of Court, Rule 3.1324, subd. (b).) Plaintiff’s motion does not comply with Cal. Rule of Court 3.1324. First, Plaintiff failed to attach a copy of the proposed amended complaint; Second, there is no declaration setting forth the information as required. The motion for leave to amend is DENIED, without prejudice.
B. Motion for Summary Adjudication
This is Plaintiff’s second motion for summary adjudication. The first was denied on the grounds that the motion failed to comply with Code Civil Procedure section 437c(b)(1) because it did not include a “separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed.” In addition, the motion failed to comply with California Rule of Court Rules 3.1350(b) and (c). The instant motion is also deficient. While plaintiff has submitted a separate statement, it is not in the two-column format mandated by Cal. Rules of Court Rule 3.1350(d)(3).) The Court also notes that if Plaintiff is seeking to amend his Complaint, waiting to seek summary adjudication until after the amended complaint has been filed would be a better use of judicial resources. Accordingly, the motion for summary adjudication is DENIED, without prejudice.
C. Motion to Determine Validity of Contract/ Will
Plaintiff seeks an order from the Court determining that Arellanes’ handwritten contract was properly executed and valid. Essentially, Plaintiff is making a second motion for summary adjudication which the Court has already denied.
The motion is DENIED, without prejudice to refile as a motion for summary adjudication in full compliance with all Rules of Court and statutory requirements..
III.
Conclusion
Plaintiff’s motion for summary judgment is denied, without prejudice. Plaintiff’s motion to declare contract valid is denied, without prejudice. Plaintiff’s motion for leave to file a first amended complaint is denied, without prejudice.
The clerk shall provide notice of this ruling to the parties forthwith. No further formal Orders are required.