168 ET LLC vs. El Toro Shopping Center II LLC

The court has wide discretion to grant relief under the statute authorizing relief from a proceeding taken against a party through his

1 Plaintiff seeks to restore Defendants Michael H. Mogel and PMA Advisors as defendants to the action, and they

seek leave to file a First Amended Complaint, which would name these two dismissed defendants. 2 Mugel was dismissed, with prejudice, on April 25, 2023. [ROA # 17] PMA was dismissed, without prejudice, on

December 2, 2025. [ROA # 68] The Motion was filed March 23, 2026, meaning the Motion is untimely as to Mugel, but timely as to PMA.

or her mistake, inadvertence, surprise, or excusable neglect. (Toho- Towa Co., Ltd. v. Morgan Creek Productions, Inc. (2013) 217 Cal.App.4th 1096, 1111.) “ ‘A motion seeking such relief lies within the sound discretion of the trial court, and the trial court’s decision will not be overturned absent an abuse of discretion.... Section 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. [Citations.]

In such situations, “very slight evidence will be required to justify a court in setting aside the default.” [Citations.] [¶] Moreover, because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default. [Citations.] Therefore, a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits. [Citations.]’ ” (McCormick v. Board of Supervisors (1988) 198 Cal.App.3d 352, 359-360, superseded by statute, on other grounds, as discussed in Torrey Hills Community Coalition v.

City of San Diego (2010) 186 Cal.App.4th 429, 441-442 [discussing how California Public Resource Code section 21167.4 was amended in 1993 and 1994]; New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1419-1420; accord, Behm v. Clear View Technologies (2015) 241 Cal.App.4th 1, 8.)

“[T]he trial court’s discretion to deny a motion for relief under section 473 based on the failure to establish excusable neglect is limited to circumstances where ‘inexcusable neglect is clear....’ ” (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1419-1420.) “Stated another way, the policy of the law is to have every litigated case tried upon its merits, and it looks with disfavor upon a party who, regardless of the merits of the case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary. [Citations.]” (Weitz v. Yankosky (1966) 63 Cal.2d 849, 854-855; Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 696.)

Further, “ ‘The law strongly favors trial and disposition on the merits. Therefore, any doubts in applying section 473 must be resolved in favor of the party seeking relief. When the moving party promptly seeks relief and there is no prejudice to the opposing party, very slight evidence is required to justify relief.’ [Citation.]” (Avila v. Chua (1997) 57 Cal.App.4th 860, 868.) For this reason, “we need not consider respondents’ arguments that counsel’s mistake was inexcusable.” (Ibid.)

B. Merits -- Set Aside Dismissal

The Court denies the Motion to Set Aside Dismissal because the Motion was not accompanied by a proof of service. This does not comply with the Code of Civil Procedure’s and the California Rules of Court’s requirements that all moving and supporting papers be filed and served. (Code Civ. Proc., §§ 1005, 1010; Cal. Rules of Court, rule 3.1300; see Code Civ. Proc., § 1005.5 [a motion is made upon the due service and filing of the notice of motion].)

Further, and as noted, Mugel was dismissed on April 25, 2023, yet Plaintiff did not file this Motion until March 23, 2026, far beyond the six-month limitation of section 473, subdivision (b) of the Code of Civil Procedure. Thus, even if Plaintiff properly served its Motion, the Motion as to Mugel was untimely, such that it must be denied.

In its Motion, Plaintiff argues that “pro per litigants are held to reasonable standards, and technical issues are common in remote proceedings.” However, Rappleyea v. Campbell (1994) 8 Cal.4th 975, which Plaintiff cited in support of the foregoing position, held that “mere self-representation is not a ground for exceptionally lenient treatment. Except when a particular rule provides otherwise, the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation. [Citation.]

To the extent it articulates a contrary view, Pete v. Henderson (1954) 124 Cal.App.2d 487, 491 [269 P.2d 78, 45 A.L.R.2d 58] should very rarely, if ever, be followed. A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984–985.)

In other words, any period of self-representation does not afford Plaintiff exceptionally lenient treatment. Instead, it is entitled to the same, but no greater, consideration than represented parties, and it is held to the same procedural requirements as represented parties. (Rancho Mirage Country Club Homeowners Association v. Hazelbaker (2016) 2 Cal.App.5th 252, 262.)

C. Statement of Law – Leave to Amend

“The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may

likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.” (Code Civ. Proc., § 473, subd. (a)(1); Doskocz v. ALS Lien Services (2024) 102 Cal.App.5th 107, 120; Miyahara v. Wells Fargo Bank, N.A. (2024) 99 Cal.App.5th 687, 703.)

“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 the amendment of any pleading or pretrial conference order.” (Code Civ. Proc., § 576.)

“A motion to amend a pleading before trial must: (1) Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and (3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located 3.” (Cal. Rules of Court, rule 3.1324(a).)

In addition, “A separate declaration must accompany the motion and must specify: (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 4.” (Cal. Rules of Court, rule 3.1324(b).)

“ ‘It is well established that leave to amend a complaint is entrusted to the sound discretion of the trial court, and that the exercise of that discretion will not be disturbed on appeal absent a clear showing of abuse of discretion.’ [Citation.] This discretion extends to requests to amend both the causes of action and the parties.” (North Coast Village Condominium Association v. Phillips (2023) 94 Cal.App.5th 866, 881; see Garcia v. Roberts (2009) 173 Cal.App.4th 900, 909 [trial court’s exercise of discretion in ruling on motion for leave to amend a complaint “ ‘ “will not be disturbed on appeal absent a clear showing of abuse” ’ ”].)

“While a motion to permit an amendment to a pleading to be filed is one addressed to the discretion of the court, the exercise of this

3 While the Motion generally describes the three new proposed causes of action (Motion, 7:11-8:4), it does not

comply with the requirements of rule 3.1324(a). 4 Plaintiff’s counsel did not support the Motion with a declaration.

discretion must be sound and reasonable and not arbitrary or capricious. [Citation.] And it is a rare case in which ‘a court will be justified in refusing a party leave to amend his pleadings so that he may properly present his case.’ [Citations.] If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion. [Citations.]” (Morgan v. Superior Court of Los Angeles County (1959) 172 Cal.App.2d 527, 530.)

“[P]leadings and amendments thereto should be allowed and construed liberally with the object of affording every litigant his day in court and to render substantial justice between the parties. [Citations.]” (Kauffman v. Bobo & Wood (1950) 99 Cal.App.2d 322, 323.) “The court should show great liberality at all stages in permitting such amendments as will facilitate the production of all the facts bearing on the questions involved in the action, where this can be done without working great delay and without jeopardizing the rights of an adverse party, and where the cause of action and the issues involved will not be radically changed.” (Barba v. Superior Court of Los Angeles County (1966) 239 Cal.App.2d 572, 577.)

“ ‘Such amendments have been allowed with great liberality “and no abuse of discretion is shown unless by permitting the amendment new and substantially different issues are introduced in the case or the rights of the adverse party prejudiced [citation].” [Citations.]’ [Citation.]” (Garcia v. Roberts (2009) 173 Cal.App.4th 900, 909; see Mac v. Minassian (2022) 76 Cal.App.5th 510, 519 [“ ‘ “California courts ‘have a policy of great liberality in allowing amendments at any stage of the proceeding so as to dispose of cases upon their substantial merits where the authorization does not prejudice the substantial rights of others’ ” ’ ”]; see Duchrow v.

Forrest (2013) 215 Cal.App.4th 1359, 1377-1378 [liberality in permitting amendment at any stage of the proceeding when no prejudice to opposing party shown. Examples of prejudice may include long and unexplained delay or where amendment introduces new and substantially different issues into case]; see Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 354-355 [trial court can deny motion to amend where there is a lengthy delay in filing the motion and the amendment raises new issues the opposing party did not have an opportunity to defend against]; see McKee v.

Mires (1952) 110 Cal.App.2d 517, 522-523 [it was not abuse of discretion to allow amendment of complaint even after request to amend was made at the conclusion of the case to conform to proof].)

In determining whether to allow a party to amend its pleading, “ ‘trial courts should be guided by two general principles: (1) whether facts or legal theories are being changed and (2) whether the opposing party will be prejudiced by the proposed amendment. Frequently, each principle represents a different side of the same coin: If new facts are being alleged, prejudice may easily result because of the inability of the other party to investigate the validity of the factual allegations while engaged in trial or to call rebuttal witnesses.

If the same set of facts supports merely a different theory—for example, an easement as opposed to a fee—no prejudice can result.’ [Citation.] ‘The basic rule applicable to amendments to conform to proof is that the amended pleading must be based upon the same general set of facts as those upon which the cause of action or defense as originally pleaded was grounded.’ [Citation.]” (Garcia v. Roberts (2009) 173 Cal.App.4th 900, 910.)

D. Merits -- Motion for Leave to Amend

As with its request for relief from the dismissals of Mugel and PMA, the request for leave to amend is denied because the Motion was not accompanied by a proof of service. In addition, the Motion does not comply with the requirements of rule 3.1324 of the Rules of Court.

Next, the proposed First Amended Complaint names Mugel as a defendant. However, and as discussed, the motion to set aside Mugel’s dismissal is now time-barred.

Further, Plaintiff has filed two motions, first, a motion for relief from dismissals, and second, a motion for leave to file a first amended complaint, yet it only paid one filing fee of $60.00. It should be required to pay two filing fees.

For the foregoing reasons, the Court denies the request for leave to amend.

Moving party to give notice.

5 Activate Clean Energy, LLC TENTATIVE RULING: vs. DMX Engineering, LLC For the reasons set forth below, Plaintiffs Activate Clean Energy, LLC and Rasa Energy, Inc.’s motion to amend judgment is DENIED without prejudice.