Judge Alison Mackenzie, Case Number: 22STCV38250, Date: 2023-12-20 Tentative Ruling

Judge: Alison Mackenzie, Case: 22STCV38250, Date: 2023-12-20 Tentative Ruling

Case Number: 22STCV38250 Hearing Date: January 5, 2024 Dept: 55

NATURE OF PROCEEDINGS: Motion of Plaintiff SIOF 1 Properties, LLC to Amend Complaint.

The motion is granted. The proposed Third Amended Complaint may be filed and served, as a separate document, within 20 days.

On 8/28/23, Plaintiff SIOF 1 Properties, LLC (“SIOF”) filed a Second Amended Complaint, in consolidated case number 22STCV38250, against Defendant Phood Farmacy 2 LLC (“Phood Farmacy”), asserting seven claims based on allegations that SIOF, as commercial lessor and lender, agreed to provide over $350,000 for Phood Farmacy tenant’s improvements to prepare 1000 E. 60th Street, Los Angeles for occupancy, but Phood Farmacy abandoned the premises after about 7 months of possession and refuses to repay the loan or pay the rent. The causes of action are: 1) Breach of Lease; 2) Failure to Repay Loan; 3) Common Counts: Money Owed; 4) Unjust Enrichment; 5) Intentional Interference With Prospective Economic Advantage; 6) Intentional Interference With Contractual Relations; and 7) Negligent Interference With Prospective Economic Advantage.

SIOF brings this motion (filed on 10/20/23) requesting leave to file a proposed Third Amended Complaint (mot., ex. 1) to include recently learned facts in support of its First Cause of Action for Breach of Lease and Fourth Cause of Action for Unjust Enrichment, and to include in the caption as defendants ROBERT ANCILL and THELMA ANCILL. SIOF seeks leave to include these amendments after meeting and conferring with Phood Farmacy about a possible demurrer to the Second Amended Complaint. Phood Farmacy opposes the motion.

“If discovery and investigation develop factual grounds justifying a timely amendment to a pleading, leave to amend must be liberally granted.” Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596. SIOF has sufficiently demonstrated evidence of recently learned facts, i.e., Phood Farmacy’s meet and confer letter pointing out that the caption did not include Defendants Robert and Thelma Ancill even though the complaint contained allegations against them and suggesting that the breach of lease and unjust enrichment claims did not contain sufficient allegations. The Court thus abides by the general policy to liberally allow amended complaints and grants SIOF’s motion.

Phood Farmacy opposes the motion on grounds including that the Court has discretion to deny the instant motion on the bases of futility, inexcusable delay, and prejudice, and SIOF’s failure to name Robert and Thelma Ancill as defendants and to allege other known facts in the Second Amended Complaint constitutes a waiver. But the declaration by Phood Farmacy’s counsel simply describes demurrer-related meet-and-confer efforts and does not serve as any evidence of the assertions set forth in the opposition. Counsel's unsworn assertions or arguments are not evidence and will not support a finding of fact. DiCola v. White Bros. Performance Products, Inc. (2008) 158 Cal.App.4th 666, 682. Phood Farmacy’s opposition to the motion is curious given that SIOF’s proposed Third Amended Complaint responds and addresses issues raised by Phood Farmacy during the demurrer meet and confer. To now turn around and assert, without any basis, that such a proposed amendment is futile, prejudicial, and constitutes a waiver, is an unreasonable and unconvincing position to take.

Phood Farmacy’s demurrer and motion to strike with regards to the Second Amended Complaint, both of which are set for hearing on 3/21/24, are ordered off calendar, as moot, given the Court’s order granting leave to file the superseding complaint. Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945-46.