Judge: Carolyn M. Caietti, Case: 37-2020-00036310-CU-BC-CTL, Date: 2024-02-16 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - February 15, 2024

02/16/2024  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited  Breach of Contract/Warranty Motion Hearing (Civil) 37-2020-00036310-CU-BC-CTL SC COMMERCIAL LLC VS STARLINE TOURS OF HOLLYWOOD INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Amended Motion, 01/25/2024

Cross-Complainants Starline Tours of Hollywood, Inc., Screamline Investment Corporation and Farhadi Kamrouz' Amended Motion for Leave to File a First Amended Cross-Complaint is GRANTED IN PART AND DENIED IN PART.

Preliminary Matters Cross-Defendant The Soco Group, Inc. joined in the opposition. (ROA 676.) Cross-Defendants SC Commercial, LLC and Jeffrey Dartt's request for judicial notice is granted and notice will be taken to the extent permitted.

Cross-Complainants' objections to the Soco Group, Inc.'s Notice of Joinder is overruled.

Cross-Complainants (hereafter referred collectively as Starline)'s objection to the Declaration of Russell Kinzig is sustained on relevance grounds because the Court is not tasked with determining the merits of the case on this motion.

Discussion 'The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading...' (C.C.P., § 473(a)(1).) '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.' (Morgan v. Sup.Ct. (1959) 172 Cal.App.2d 527, 530.) Generally, as discussed below, to the extent Starline seeks to add factual allegations and claims regarding Chevron products, the motion is GRANTED. However, to the extent the motion seeks to add new cross-defendants and claims related to the Assignment and Assumption Agreement, the motion is DENIED.

Roe Cross-Defendants & Sixth Cause of Action for Declaratory Relief To the extent Starline seeks to add new Roe-cross-defendants, the motion is DENIED.

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3078677  49 CASE NUMBER: CASE TITLE:  SC COMMERCIAL LLC VS STARLINE TOURS OF HOLLYWOOD  37-2020-00036310-CU-BC-CTL C.C.P. section 474 provides, 'When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, ... and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly.' (Emphasis added.) 'The phrase 'ignorant of the name of a defendant' is broadly interpreted to mean not only ignorant of the defendant's identity, but also ignorant of the facts giving rise to a cause of action against that defendant.' (Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1170.) '[S]ection 474 includes an implicit requirement that a plaintiff may not 'unreasonably delay' his or her filing of a Doe amendment after learning a defendant's identity.' (A.N. v. County of Los Angeles (2009) 171 Cal.App.4th 1058, 1066-1067.) '[U]nreasonable delay in filing an amendment after actually acquiring such knowledge can bar a plaintiff's resort to the fictitious name procedure.' (Barrows v. American Motors Corp. (1983) 144 Cal.App.3d 1, 8.) Unreasonable delay 'includes a prejudice element, which requires a showing by the defendant that he or she would suffer prejudice from plaintiff's delay in filing the Doe amendment.' (A.N., supra, at p. 1067 (ruling two-year delay in filing and serving Doe amendments caused undue prejudice to defendants brought into litigation less than one month before trial).) Here, there is evidence Starline knew of the proposed Roe cross-defendants and their involvement in this matter before they even filed their original cross-complaint. (Declaration of Robert Risbrough, at Ex. A – Demurrer filed July 16, 2021.) In the demurrer to Plaintiff's First Amended Complaint (filed before the original cross-complaint), Starline referenced SC Fuels and Cardlock, the assignment of assets and whether Starline and Screamline's credit applications and accounts 'were indeed transferred to SC Commercial or some other entity...' (Ibid.) In opposition, Plaintiff explained SC Fuels was the umbrella name for various entities, including SC Commercial, LLC. (Risbrough Decl., at Ex. D.) Then in discovery in 2021, the organizational structure was further explained at a deposition of Brandi Patton, SC Fuels Administrative Services Director. (Risbrough Decl., at Ex. F.) Even in Starline's verified discovery responses served in September 2021, Starline identified a 'question [that] has arisen regarding the identity of the company or companies that provided any fuel products to Responding Party and/or that provided invoices for fuel products to Responding Party during the time frame in question.' (Id., at Ex. H.) Starline also had Cardlock Fueling systems invoicing. (Id., at Ex. I.) Despite this, Starline has not shown the Court it sought discovery – and when it did so - on these issues and it did not seek leave to amend until January 2024. At most, Starline maintains the entities were learned about in depositions in mid-late 2023. But it is not at all clear what was learned, from who and how it impacted their knowledge of the proposed-Roes' identities as well as the facts giving rise to the claims. (Cal. Rules of Ct., rule 3.1324(b)(1)-(4) (requiring a party seeking leave to amend to specify the effect of the amendment, why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered and the reasons why the request for amendment was not made earlier).) Starline's supporting declaration is incomplete.

Even though Starline knew of these facts, knew of SC Fuels and Cardlock, had done other searches through the California Secretary of State database as early as July 2021, and had the assignment agreement identifying other entities (FAC, at Ex. C), it did not seek leave to amend until two and half years later in January 2024, amounting to an unreasonable delay. This motion was made two weeks before the Trial Readiness Conference and less than a month before Trial Call (which were the second set of trial dates). Even though the Court continued the trial (for a third time) six months, adding three new cross-defendants could likely result in another trial delay, but more assuredly, the loss of critical evidence from these proposed cross-defendants (on events occurring over half a decade ago), the added cost of preparation, an increased burden of discovery as well as law and motion work. The Court is also mindful this case is approaching the five-year disposition mark and the Court's law and motion calendar is severely impacted. (C.C.P., § 583.310.) Notwithstanding all of this, Starline agreed in 2022: 'Case deemed at issue. Pursuant to stipulation of the parties, no new parties may be added without leave of court and all unserved, non-appearing and Calendar No.: Event ID:  TENTATIVE RULINGS

3078677  49 CASE NUMBER: CASE TITLE:  SC COMMERCIAL LLC VS STARLINE TOURS OF HOLLYWOOD  37-2020-00036310-CU-BC-CTL fictitiously named parties are dismissed 08/05/2022.' (ROA 118 – Minute Order.) Starline does not reply that they did not seek leave before August 5, 2022.

For these reasons, the motion is DENIED to the extent Starline seeks to add a cause of action for declaratory relief regarding the Assignment. This claim has been known by Starline for years and it did not seek leave to amend until right before trial was scheduled to go forward. Notably, Starline also takes issue with Cross-Defendants' related discovery responses and instructions not to answer certain deposition questions. But Starline does not sufficiently explain what it has done to compel these responses, if any. The Court cannot recall addressing these issues and, if it were done with the previous discovery referee, no explanation is provided as to any outcomes.

Allegations Regarding Chevron Branded Products In light of the policy to liberally allow amendments, Starline may amend to add the allegations regarding Chevron branded products. There is sufficient time before trial to conduct discovery on this issue.

Second Cause of Action – Negligent Misrepresentation The amendments related to the second cause of action are an attempt to plead around the Court's ruling on Cross-Defendant Jeffrey Dartt's Motion for Summary Adjudication. As background, the original second cause of action was against SOCO and Dartt with the Court granting adjudication on the second cause of action in favor of Dartt. (ROA 621.) The main change in the proposed amended cross-complaint is that it is alleged against 'All' Cross-Defendants except Dartt, thus adding Cross-Defendant SC Commercial, LLC. No changes are made to the factual allegations that it was Dartt, as an agent for SOCO, who made certain representations and promises. There are no new factual allegations showing negligent misrepresentations made by any other cross-defendant or that Dartt served as an agent for SC Commercial. (Vivonia Decl., at Ex. B, p. 7.) Cross-Defendants are correct that this appears to be an attempt to plead around the ruling on the Motion for Summary Adjudication. (ROA 621.) As explained in the Fourth District, Division One case of Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 'when a plaintiff seeks leave to amend his or her complaint only after the defendant has mounted a summary judgment motion directed at the allegations of the unamended complaint, even though the plaintiff has been aware of the facts upon which the amendment is based, '[i]t would be patently unfair to allow plaintiffs to defeat [the] summary judgment motion by allowing them to present a 'moving target' unbounded by the pleadings.'' (Falcon, at p. 1280.) Further, Starline does not reply to Cross-Defendants' argument the claim is barred by the statute of limitations, making the amendment futile. Thus, the motion to amend is DENIED to the extent Starline seeks to amend the second cause of action.

Fourth Cause of Action – Accounting The motion and reply are silent as to why Dartt is now included in the fourth cause of action for accounting. (CRC 3.1324.) Thus, Starline has not met its burden. The motion is DENIED to the extent the proposed amended cross-complaint seeks to allege the fourth cause of action against Dartt.

Seventh Cause of Action – Fraud (Intentional Misrepresentation) Leave to amend is granted as to the seventh cause of action. This claim for fraud (intentional misrepresentation) is not duplicative of the first cause of action for false promise/concealment. According to Starline, it did not learn it did not receive Chevron products until this litigation. As discussed above, in light of the policy to liberally allow amendments, the Court is required to allow leave to amend the Calendar No.: Event ID:  TENTATIVE RULINGS

3078677  49 CASE NUMBER: CASE TITLE:  SC COMMERCIAL LLC VS STARLINE TOURS OF HOLLYWOOD  37-2020-00036310-CU-BC-CTL cross-complaint as to this cause of action.

Concluding Orders For these reasons, the motion is GRANTED IN PART AND DENIED IN PART.

Starline is ordered to file and serve an amended cross-complaint consistent with this ruling by February 29, 2024. Particularly, the proposed allegations to be omitted are: paragraphs 7-9, the amendments to the second cause of action for negligent misrepresentation, the titling under the fourth cause of action related to Dartt and the sixth cause of action for declaratory relief.

If Cross-Defendants take any issue with the amended cross-complaint being inconsistent with this ruling, the parties are encouraged to schedule a conference with the Court.

The Court will discuss with the parties the dates of any needed dispositive motions before trial in August.

If the tentative ruling is confirmed without modification, the minute order will be the Court's final order.

Cross-Complainants are ordered to serve written notice of the Court's final order on all appearing parties by February 21, 2024.

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