KSHIRSAGAR vs NABER, et al.

23CV001802: KSHIRSAGAR vs NABER, et al. 12/18/2025 Hearing on Motion for Leave to Amend Complaint in Department 54

Tentative Ruling

TENTATIVE RULING:

Overview

This action arises from a property dispute between neighbors. Plaintiff Chandrakant Kshirsagar (“Plaintiff”) filed a Complaint against Defendant Teresa Naber, individually and as Trustee of Teresa Naber Revocable Trust, (“Defendant”) on March 5, 2023. Plaintiff asserts four causes of action: (1) quiet title by implied easement; (2) quiet title by prescriptive easement; (3) declaratory relief; and (4) injunction. Defendant filed a verified Cross-Complaint for quiet title and declaratory relief on June 28, 2023. The Court issued a preliminary injunction on February 14, 2024, to maintain the status quo until the action is concluded.

Plaintiff moved to file a verified first amended complaint on May 12, 2025. The Court set a hearing for September 3, 2025, and continued the hearing on its own motion to October 8, 2025. After the hearing, the Court denied Plaintiff’s motion largely on the basis that Plaintiff had not complied with California Rules of Court (“CRC”), rule 3.1324. (Minute Order, Oct. 8, 2025.) The Court granted leave to refile “with a CRC-compliant declaration.” (Id. at p. 2.)

On October 27, 2025, Plaintiff filed a new motion to file a verified first amended complaint. Defendant opposes the motion.

This matter is currently set for trial on January 5, 2026.

Legal Standard

“The court may, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading.” (Code Civ. Proc., § 473, subd. (a)(1).) “When it appears to the satisfaction of the court that the amendment renders it necessary, the court may postpone the trial.” (Id., subd. (a)(2).) A motion to amend a pleading must include a copy of the proposed amended pleading and state what allegations will be deleted or added by page, paragraph, and line number. (Cal. Rules of Court, rule 3.1324, subd. (a).) Further, the party must submit a separate declaration specifying “(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 was not made earlier.” (Id., subd. (b).)

23CV001802: KSHIRSAGAR vs NABER, et al. 12/18/2025 Hearing on Motion for Leave to Amend Complaint in Department 54

Courts “apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial.” (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487.) This policy ensures that “cases are tried and decided on the merits.” (Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 565 [quoting MacIsaac v. Pozzo (1945) 26 Cal.2d 809, 815–816].)

The rule of granting leave to amend prevails unless prejudice to the adverse party can be shown. (Higgins, supra, 123 Cal.App.3d at p. 564.) Prejudice is more than that a defendant must merely defend a charge (Landis v. Super. Ct. (1965) 232 Cal.App.2d 548, 557) or face additional relevant evidence (Hirsa v. Super. Ct. (1981) 118 Cal.App.3d 486, 490). Prejudice can be found when an unexplained delay in moving to amend causes trial continuance or reopens discovery. (Magpali, supra, 48 Cal.App.4th at p. 486–488.) In sum, the court must consider the effect of the proposed amendment, the moving party’s explanation for delay and prejudice to the opposing party, within the policy of liberally granting leave to amend. (Landis, supra, 232 Cal.App.2d at p. 557.)

When a complaint is amended, the adverse party has 30 days to respond, unless the court directs otherwise. (Code Civ. Proc., § 471.5, subd. (a).)

Discussion

Plaintiff states that the proposed Verified First Amended Complaint (“Proposed VFAC”) differs from the Complaint in two ways: (1) It is verified; and (2) It incorporates new caselaw that was decided approximately one year after filing the Complaint. (Memo. of Points and Authorities (“MPA”) 1:25–2:5.) Plaintiff argues that verifying the Complaint will require the Defendant to admit or deny the allegations in the Complaint. (MPA 3:25– 4:2.) Plaintiff further argues that amending the pleadings conforms the cause of action for an implied easement to Romero v. Shih (2024) 15 Cal.5th 680 and removes allegations that have become “unnecessary”. (MPA 3:19–23; see, e.g., Adams Decl. 3:23–25, 3:24–27 [proposing to remove “unnecessary” allegations].)

Subparagraphs A through I of Paragraph 2 of the MPA state the paragraph and line numbers at which allegations are proposed to be removed, rewritten, or added.[1] (MPA 4:3–6:9.) Subparagraph J would add an allegation of res judicata and issue preclusion to the Proposed VFAC. (Id. at 6:10–12.)

Pursuant to CRC, rule 3.1324, subdivisions (b)(1)–(2), Plaintiff’s attorney Eddie Adams declares that the amendments are necessary and proper “to clarify Plaintiff’s burden of proof at trial” by alleging only the essential elements of a cause of action for implied easement after Romero. (Adams Decl. 4:19–28.) Adams further declares that the

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV001802: KSHIRSAGAR vs NABER, et al. 12/18/2025 Hearing on Motion for Leave to Amend Complaint in Department 54

amendment is necessary and proper because the complaint will now be stated under penalty of perjury, requiring Defendant to answer likewise. (Adams Decl. 5:3–6.) Adams does not declare why adding the allegation of res judicata and issue preclusion is necessary or proper.

Pursuant to CRC, rule 3.1324, subdivisions (b)(3)–(4), Adams declares that he first became aware of a need to amend based on the Romero case in March 2025. (Adams Decl. 5:9–10.) Having secured a preliminary injunction and with a trial date in 2026, Adams set the file aside until approximately a year out from trial. (Id. at 5:13–19.) Adams declares that he believes he first attempted to have Defendant’s counsel stipulate to an amendment in March 2025 and, failing that, believed filing a motion to amend in May 2025 would allow sufficient time. (Id. at 5:28–6:14.) The declaration does not discuss when Adams became aware of the need to verify the Complaint or to add the allegation of res judicata and issue preclusion.

Defendant argues that Plaintiff actually intends to move the trial date by seeking to amend (Opp. 2:10–11) and that Plaintiff must file a verified complaint to cure a fatal defect in the pleading (Opp. 2:21–3:3). Defendant states that if the Complaint were amended, Defendant would answer or demur, which would require continuing the trial date “well into 2026,” and that new allegations “would require months of additional discovery.” (Opp. 2:25–28.) Defendant further states that she has waited more than three years for trial during which her real property interests have been obstructed. (Opp. 3:6–8.)

Although Plaintiff asserts that the Proposed VFAC makes two changes to the Complaint, the Court reads the Proposed VFAC as making three categories of substantive changes: (1) amending general factual allegations and the first cause of action; (2) alleging res judicata and issue preclusion; and (3) verifying the complaint. For the Court to grant Plaintiff’s motion, at least one of these three categories of changes must meet the standard to allow leave to amend.

a. Amended Factual Allegations and First Cause of Action

Adams declares that the Proposed VFAC would amend Paragraphs 1 and 9–28 and rewrite the first cause of action. (Adams Decl., ¶ 9(A)–9(G).) The Proposed VFAC actually makes many more changes. For instance, Paragraph 2 of the Complaint (regarding venue) is Paragraph 6 of the VFAC. Several exhibits have been deleted from the Complaint and new proposed exhibits have been added. The Court has not made a comprehensive catalog of differences; Plaintiff should have done that. (Cal. Rules of Court, rule 3.1324, subd. (a).)[2]

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV001802: KSHIRSAGAR vs NABER, et al. 12/18/2025 Hearing on Motion for Leave to Amend Complaint in Department 54

Regardless, Plaintiff argues that the California Supreme Court’s Romero opinion altered his burden of proof and made many of his factual allegations unnecessary. (Adams Decl. 4:19–28.) Defendant argues that far from conforming to Romero, Plaintiff actually pleads a new complaint with different underlying facts. (Opp. 4:2–5:4.)

Remarkably, Plaintiff and Defendant agree that amending the pleading to conform to Romero is not actually necessary. Defendant states, “If [Romero is dispositive], then there is no need to rewrite the facts to ‘be consistent’ with new law. Either the case is applicable to the facts at bar or it is not.” (Opp. 7:20–21.) Adams declares that “[t]he only thing that was going to change [by amending] was the lessening of my burden of proof at trial, which was going to apply whether or not I amended the complaint.” (Adams Decl. 6:6–8.)

The Court agrees with the parties that Romero does not require amendment to the Complaint. In Romero the Supreme Court distinguished among express easements, implied easements, prescriptive easements, and adverse possession of a fee interest. ((2024) 15 Cal.5th 680, 696–700.) The Court overturned a Court of Appeals opinion that had concluded exclusive-use implied easements were impermissible as a matter of law. (Id. at p. 698.) By doing so, Romero confirmed prior law and rejected a new rule of law proposed by the Appellate Court. (Id. at p. 700.) Thus, Romero changed nothing for Plaintiff’s first cause of action.

Even if Romero makes certain factual allegations of the Complaint “unnecessary,” this is not a serious defect. “[I]rrelevant, false, or improper matter[s]” may be struck from a pleading. (Code Civ. Proc., § 436.) But Defendant has not moved to do so, and indeed, the time to move to strike allegations in a complaint is long past. (Code Civ. Proc., § 435, subd. (b)(1) [motion to strike must be filed within the time allowed to respond to a pleading, usually 30 days from service for a complaint].

Plaintiff has not shown that amending the factual allegations and the first cause of action is necessary and proper. (CRC, rule 3.1324, subd. (b)(2)) If the motion were denied, Plaintiff loses nothing. The cause of action is adequately pleaded, and the claim will be tried on the merits.

On the other hand if the motion were granted, it is likely that trial would be continued. Defendant would be allowed to respond by answer, demurrer, or other motion. The Court could order Defendant to respond in less than 30 days, but Defendant may still demur or determine that the factual allegations required additional discovery. Although Defendant’s allegations of prejudice are somewhat conclusory and conditional (Opp.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV001802: KSHIRSAGAR vs NABER, et al. 12/18/2025 Hearing on Motion for Leave to Amend Complaint in Department 54

2:25–28), there is at least the possibility of prejudice in trial delay.

The threat of prejudice outweighs Plaintiff’s asserted need in amending on this basis, even considering the liberal policy of allowing leave to amend.

b. Res Judicata and Issue Preclusion

Plaintiff proposes to add an allegation to the first cause of action that “[t]he CC&Rs and the Easement are binding as Res Judicata and Issue Preclusion on Defendants, and each of them, by Court Order in Superior Court of California, County of Sacramento, Case No. 34-2019-002255195.” (Proposed FVAC, ¶ 38.) The Complaint mentions the prior case but does not specifically allege res judicata or issue preclusion as to the “Easement.” (See Compl., ¶ 18 [alleging that “the CC&Rs are binding on Defendant” by the prior court order].) Plaintiff includes this new allegation as part of the pleading amendments required by Romero. (See MPA, ¶ 2(I).)

First, res judicata and issue preclusion are not discussed in Romero. (See Romero v. Shih (2024) 15 Cal.5th 680.) Res judicata and issue preclusion prevent the relitigation of claims and issues actually argued and decided in prior proceedings. (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896.) These doctrines promote the interest of judicial economy and preserve the resources of litigants and the court. (Id. at 897.) Res judicata and issue preclusion are entirely separate from the law of easements.

Second, Plaintiff’s attorney did not state “[w]hen the facts giving rise to the amended allegations were discovered” or “[t]he reasons why the request for amendment was not made earlier.” (Cal. Rules of Court, rule 3.1324., subd. (b)(3)–(4).) Adams’s declaration omits any explanation. (See Adams Decl. [single mention of the terms “res judicata” or “issue preclusion” is in the proposed amended text].) On October 8 this Court specifically directed Plaintiff to provide a CRC-compliant declaration “concerning the proposed new allegations concerning res judicata and issue preclusion” if he refiled the motion. (Oct. 8, 2025 Minute Order, at p. 2.) Plaintiff did not do so.

Res judicata must be pleaded when the facts supporting it arise. (Hong Sang Market, Inc. v. Peng (2018) 20 Cal.App.5th 474, 488.) Plaintiff did not provide a copy of the allegedly res judicata judgment. The Court believes, from searching Superior Court records, that the judgment issued on October 3, 2022. This is eight months before Plaintiff filed the instant lawsuit in May 2023.

The court acknowledges that the timing of hearing this motion to amend was not completely within Plaintiff’s control. Yet the motion is now being heard less than three

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV001802: KSHIRSAGAR vs NABER, et al. 12/18/2025 Hearing on Motion for Leave to Amend Complaint in Department 54

weeks before trial. With no explanation for the delay provided, the Court finds that the threat of prejudice to Defendant in trial delay outweighs Plaintiff’s interest in amending on this basis, even considering the liberal policy of allowing leave to amend.

Plaintiff still has the opportunity to prove his allegations. Res judicata and issue preclusion are judicial shortcuts. If Plaintiff did not adequately allege them in the Complaint, Plaintiff’s claims may still be tried on the merits.

c. Verification of Complaint

Plaintiff declares that leave to amend to verify the Complaint is necessary and proper because it will “require[] Defendant to answer under penalty of perjury, and Plaintiff believes Defendant cannot deny the allegations without committing perjury.” (Adams Decl. 5:3–6.) Adams does not declare when he discovered a need to verify the Complaint or the reasons why the amendment was not made earlier. (See Adams Decl., at pp. 5–6.) Defendant argues that the “real reason” Plaintiff seeks to verify the Complaint is because the Complaint is defective according to Code of Civil Procedure, section 761.020. (Opp. 2:21–3:3.) Plaintiff agrees that the cited code section requires the Complaint to be verified. (Reply 6:14–15.)

Verification means that a party signs the pleading under penalty of perjury. (Code Civ. Proc., § 446.) When a complaint is verified, the answer must also be verified. (Ibid.) A complaint in quiet title must be verified. (Code Civ. Proc., § 761.020.)

A party should be allowed to amend a pleading to correct a technical detail, such as failure to verify, when the issue is timely raised. (Natkin v. Cal. Unemployment Insurance Appeals Bd. (2013) 219 Cal.App.4th 997, 1012, fn. 10.) A motion to strike is the proper response to an unverified complaint. (Zavala v. Bd. of Trustees (1992) 16 Cal.App.4th 1755, 1761.) A failure to object can waive the objection to an unverified complaint. (Ibid.)

Both Plaintiff and Defendant have been dilatory on this issue. Plaintiff filed an unverified complaint in May 2023. Defendant should have raised this issue by a motion to strike within the first 30 days of service of the complaint. Defendant did not do so and did not raise the issue in its motion for summary adjudication on the first cause of action. Plaintiff now seeks to verify without a full explanation for the delay.

If the Court were to grant leave to Plaintiff to amend to verify its Complaint, Defendant would likewise be required to file a verified answer. The Court could order a response within less than 30 days and potentially keep the trial date, but a shortened response

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV001802: KSHIRSAGAR vs NABER, et al. 12/18/2025 Hearing on Motion for Leave to Amend Complaint in Department 54

time could unduly prejudice Defendant. The Court cannot say whether verifying the answer will require substantive amendments.

In light of these circumstances, the Court finds that because of Plaintiff’s lack of a CRCcompliant response on this issue and to prevent having to continue the trial, leave to amend should be denied. However, the court also finds that Defendant, by failing to file a motion to strike within the proper period, has waived any objection to the Complaint on the basis that it is unverified. In this way, Plaintiff’s claims can be heard on their merits and the parties can proceed to trial forthwith.

Disposition

Plaintiff’s motion for leave to file verified first amended complaint is DENIED. The Court need not address Defendant’s arguments on inconsistent facts, judicial estoppel, or compliance with Code of Civil Procedure, section 446.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc., § 1019.5; Cal. Rules of Court, rule 3.1312.)

[1] CRC, rule 3.1324, requires that a motion to amend a pleading state which pleadings

will be deleted and added. The Court construes “rewritten” to mean deleted and replaced in their entirety. [2] A “track changes” version that clearly shows the differences between the operative

pleading and the proposed amended pleading would have been helpful for the Court and Defendant.

NOTICE:

Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendar must comply with the following procedure:

To request limited oral argument, on any matter on this calendar, you must call the Law and Motion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before the hearing and advise opposing counsel. At the time of requesting oral argument, the requesting party shall leave a voice mail message: a) identifying themselves as the party requesting oral argument; b) indicating the specific matter/motion for which they are requesting oral argument; and c) confirming that it has notified the opposing party of its intention to appear and that opposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If no request for oral argument is made, the tentative ruling becomes the final order of the Court.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV001802: KSHIRSAGAR vs NABER, et al. 12/18/2025 Hearing on Motion for Leave to Amend Complaint in Department 54

Unless ordered to appear in person by the Court, parties may appear remotely either telephonically or by video conference via the Zoom video/audio conference platform with notice to the Court and all other parties in accordance with Code of Civil Procedure §367.75. Although remote participation is not required, the Court will presume all parties are appearing remotely for non-evidentiary civil hearings.

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