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Title Elizabeth Rowen v. Bank of America

January 7, 2013

TITLE ELIZABETH ROWEN
v.
BANK OF AMERICA, N.A., ET AL.



The opinion of the court was delivered by: Present: The Honorable Christina A. Snyder

CIVIL MINUTES - GENERAL

Catherine Jeang Laura Elias N/A

Deputy Clerk Court Reporter / Recorder Tape No.

Attorneys Present for Plaintiffs: Attorneys Present for Defendants

David Lake Blake Olson

Proceedings: PLAINTIFF'S MOTION FOR LEAVE TO FILE VERIFIED SECOND AMENDED COMPLAINT (Docket #16, filed December 10, 2012)

INTRODUCTION AND BACKGROUND

On January 19, 2012, plaintiff Elizabeth Rowen filed the instant action in the Los Angeles County Superior Court against Bank of America, N.A. ("BANA"); Recontrust Company, N.A. ("Recon"); and Does 1--25. On March 1, 2012, BANA and Recon removed the case to this Court. Plaintiff voluntarily filed a first amended complaint ("FAC") on March 28, 2012, which alleges: (1) fraud, (2) negligent misrepresentation,

(3) unfair business practices pursuant to California Business and Professions Code §§ 17200 et seq. ("UCL"), (4) injunctive relief, (5) declaratory relief, (6) to set aside the notice of default and the notice of trustee's sale, and (7) quiet title.

On June 11, 2012, the Court issued an order granting in part and denying in part defendant BANA's motion to dismiss the FAC. Additionally, the Court found that the case was suitable for participation in the Alternative Dispute Resolution Program of the Central District of California, and stayed the case indefinitely, pending application by the parties. On December 10, 2012, the parties submitted a stipulation requesting that the case be reactivated, and the Court lifted the stay on December 11, 2012.

On December 10, 2012, plaintiff filed a motion to amend her complaint to allege a claim for intentional infliction of emotional distress ("IIED") against BANA. On December 17, 2012, BANA filed an opposition, and plaintiff replied on December 24, 2012. Plaintiff's motion is before the Court. As a preliminary matter, the Court must decide whether Federal Rule of Civil Procedure 15(a) or 16(b) applies. Generally, a court grants a motion for leave to amend pleadings pursuant to the permissive standard of Rule 15(a). Martinez v. Newport Beach, 125 F.3d 777, 785 (9th Cir. 1997). However, once the district court enters a scheduling order establishing a deadline for amending pleadings, Rule 16(b) applies. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000). This is because once the scheduling order is in place, the court must modify the scheduling order to permit an amendment. W. Schwarzer, A. Tashima & M. Wagstaffe, Federal Civil Procedure Before (2006) § 8:405.1 (citing Johnson v. Mammoth Recreations, Inc., 975 F.2d at 609). Since no scheduling order has been entered in this case, Rule 15(a) provides the applicable standard.

Rule 15 provides that after a responsive pleading has been filed, "a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a).

Where leave to amend is required, the decision whether to grant leave to amend "is entrusted to the sound discretion of the trial court." Jordan v. County of Los Angeles, 669 F.2d 1311, 1324 (9th Cir. 1982), vacated on other grounds, 459 U.S. 810 (1982). "Five factors are taken into account to assess the propriety of a motion for leave to amend: bad faith, undue delay, prejudice to the opposing party, futility of amendment, and whether the plaintiff has previously amended the complaint." Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004) (citing Nunes v. Ashcroft, 348 F.3d 815, 818 (9th Cir.2003)). "Some courts have stressed prejudice to the opposing party as the key factor." Texaco v. Ponsoldt, 939 F.2d 794, 798 (9th Cir. 1991). However, "[u]ndue delay is a valid reason for denying leave to amend." Id. (internal quotation marks and citation omitted); but see Bowles v. Reade, 198 F.3d 752, 758 (9th Cir. 1999) ("Undue delay by itself, however, is insufficient to justify denying a motion to amend."). Further, "the liberality of Rule 15(a) does not mean that amendment will be allowed regardless of the diligence of the moving party. Where the party seeking amendment knows or should know of the facts upon which the proposed amendment is based but fails to include them in the original complaint, the motion to amend may be denied." Jordan, 669 F.3d at 1324. "Late amendments to assert new theories are not reviewed favorably when the facts and ...


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