Judge: Curtis A. Kin, Case: 21STCV05918, Date: 2022-08-18 Tentative Ruling

Case Number: 21STCV05918    Hearing Date: August 18, 2022    Dept: 72

MOTION FOR LEAVE TO FILE

SECOND AMENDED COMPLAINT

Date:                 8/18/22 (8:30 AM)                 

Case:                FWD Future, LLC et al. v. Blue Avian Ventures LLC et al. (21STCV05918)

TENTATIVE RULING:

Plaintiff The Raw Office, Inc.’s Motion for Leave to File Second Amended Complaint is DENIED.

Plaintiff The Raw Office, Inc. (“TRO”) seeks to file a Second Amended Complaint (“SAC”) to address issues raised by opposing defendants Natural Care USA, Inc.; Natural Collection, Inc.; MMK International Inc.; and Rafi Shokrian to the First Amended Complaint (“FAC”). Further, since the filing of the FAC, FWD Future, LLC, Peach Medical LLC, and Eapen Enterprises purportedly assigned their claims to TRO, thereby eliminating a prior issue due to these other plaintiffs being represented by separate counsel. (Cf. Compl. [Margarita Salazar, Esq. as plaintiffs’ counsel] with FAC [Tailim Song, Esq. as counsel for plaintiff TRO].) The proposed SAC reflects the assignment.

Opposing defendants argue that the motion is untimely served based on the hearing date and that the allegations do not state causes of action or contradict allegations in the original Complaint and FAC.

With respect to the purported inadequacy of the allegations in the proposed SAC, such arguments are better reserved for demurrer to the Second Amended Complaint and are not a sufficient reason to deny amendment in the first instance. (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048 [“[T]he preferable practice [is] to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings”].)

With respect to timeliness of service, no proof of service was attached to the motion. Parties that have appeared in this action must be served all motions.  (CCP §§ 1005(b), 1014; Cal. Rule of Court 3.1300(a).) Defendants Blue Avian Ventures, LLC, Blue Avian, LLC, Alejandro Guardiola, Rex Salonga, and Elizabeth Labellarte did not need to be served the motion because they have not appeared in this action.  Opposing defendants Natural Care USA, Inc.; Natural Collection, Inc.; MMK International Inc.; and Rafi Shokrian contend they were not provided with the motion until August 1, 2022, fewer than the 16 court days required under CCP § 1005(b). (Opp. at 12:8-13.) Even if true, opposing defendants were able to file a substantive opposition. Accordingly, the Court would otherwise be inclined to consider the merits of the motion.

However, the motion presents the additional procedural defects that are not so easily overlooked.  Other parties who have appeared in this action appear not to have been served with the instant motion at all.  Even assuming it is true that plaintiffs FWD Future, LLC, Peach Medical LLC, and Eapen Enterprises assigned their claims to plaintiff TRO, those other plaintiffs are still parties to this action.  Based on the original Complaint filed on February 16, 2021, those other plaintiffs are represented by Margarita Salazar, Esq., who has not been relived or otherwise substituted for other counsel. The SAC proposes to strike the other plaintiffs represented by Salazar. Because no proof of service was attached to the motion, it does not appear that attorney Salazar was served with the motion on behalf of those plaintiffs. Those other plaintiffs have therefore been deprived of any notice or opportunity to respond to plaintiff TRO’s effort to remove them as parties by the filing of the proposed Second Amended Complaint.

Further, although not raised by opposing defendants, plaintiff TRO did not file a supporting declaration stating the effect of the proposed amendments, why the proposed amendments are 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, as required by Cal. Rule of Court 3.1324(b).

For the foregoing reasons, the motion is DENIED without prejudice to plaintiff TRO seeking to file an amended pleading upon a proper showing that complies with the applicable rules and procedures for so doing.