Judge: Curtis A. Kin, Case: 21STCV40893, Date: 2022-09-22 Tentative Ruling
Case Number: 21STCV40893 Hearing Date: September 22, 2022 Dept: 72
MOTION FOR LEAVE TO FILE
FIFTH AMENDED COMPLAINT
Date: 9/22/22
(9:30 AM)
Case: Javid Somekh et al. v. South Gate Tweedy, LLC et al. (21STCV40893)
Plaintiffs Javid Somekh, Hezi Kashanian, and Atlantic Park
Plaza, LLC’s Motion for Leave to File Fifth Amended Complaint is GRANTED.
Plaintiffs seek leave to file a Fifth Amended Complaint to
add a cause of action for breach of oral contract. (Nejadpour Decl. ¶ 4 &
Ex. B.)
Defendants contend the following: (1) this is an improper
motion for reconsideration of the Court’s August 18, 2022 order sustaining
their demurrer to the Fourth Amended Complaint without leave to amend; (2) this
motion violates the August 18, 2022 order sustaining the demurrer; and (3) the
proposed Fifth Amended Complaint is futile because South Gate Tweedy, LLC, a
proposed defendant in the Fifth Amended Complaint, was dismissed in the August
18, 2022 order.
With respect to the second ground, on August 18, 2022, the
Court sustained defendants’ demurrer without leave to amend as to the
dissolution of partnership, breach of fiduciary duty, and conversion causes of
action. The denial of leave to amend was as to these three causes of action, as
they were the subject of the demurrer. Plaintiff was not necessarily precluded
from seeking leave pursuant to a properly noticed motion to add different
causes of action, in this case a breach of oral contract cause of action
against both defendants Mehdi Bolour and South Gate Tweedy, LLC (“SGT”). (See
Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023 [after
demurrer sustained with leave to amend, “plaintiff may not amend the complaint
to add a new cause of action without having obtained permission to do so”].)
With respect to the first and third grounds, the demurrer to
the Fourth Amended Complaint was sustained without leave to amend with respect
to all the causes of action against South Gate Tweedy, specifically the first
cause of action for dissolution of partnership and the fourth cause of action
for conversion. However, judgment in favor of this defendant has not been
entered. CCP § 579 states: “In an action against several defendants, the Court
may, in its discretion, render judgment against one or more of them, leaving
the action to proceed against the others, whenever a several judgment is
proper.” Although CCP § 579 discusses judgments against defendants, as opposed
to judgments in favor of defendants, it has been held that under this statute:
“[W]hen there is a several judgment resolving all issues between a plaintiff
and one defendant, either party may appeal from an adverse judgment, although
the action remains pending between the plaintiff and other defendants.” (Tinsley
v. Palo Alto Unified School Dist. (1979) 91 Cal.App.3d 871, 880 [judgments
entered in favor of defendants after demurrers sustained without leave to amend
appealable even though other defendants remained].) Because CCP § 579 is framed
in terms of a Court’s discretion, defendant South Gate Tweedy was not
automatically entitled to entry of judgment of dismissal upon the Court
sustaining defendants’ demurrer as to all causes of action against it.
Citing Berri v. Superior Court (1955) 43 Cal.2d 856,
defendants contend South Gate Tweedy is entitled to a judgment of dismissal as
a matter of course. In Berri, the California Supreme Court stated:
“Ordinarily, in the absence of a request for a reconsideration, after a
demurrer is sustained without leave to amend, as here, no formal motion to
dismiss the action is necessary. The entry of a judgment of dismissal follows
as a matter of course.” (Berri, 43 Cal.2d 856 at 860.) However, the demurrer in the Berri case
did not involve the circumstances here presented in which the demurrer was
sustained as to one defendant but overruled as to another remaining defendant.
(Berri, 43 Cal.2d at 858 [“On March 4, 1953, the court made an order
sustaining, without leave to amend, defendants' demurrer to the fifth amended
complaint, 48 days before the expiration of the five-year period after
commencement of the action”].) Moreover,
the Beri court had no occasion to consider whether its pronouncement
should govern in situations where, as here, the plaintiff had a pending motion
for leave to add a cause of action not before the court when the court
sustained demurrers without leave to amend as to other causes of actions. (State Farm Fire & Casualty Co. v.
Pietak (2001) 90 Cal.App.4th 600, 614 [“Cases are not authority for
propositions not considered therein”].)
Defendants also cite Oppenheimer v. Deutchman (1955)
132 Cal.App.2d Supp. 875, 879, which, citing Berri, stated that a “notice
of motion to dismiss is not required after a demurrer has been sustained
without leave to amend.” This is because the losing party on demurrer already
had a hearing. (Oppenheimer, 132 Cal.App.2d Supp. at 879.) However, that
statement only pertains to notice. CCP § 581(f)(1), which allows the Court to
dismiss a complaint as to a particular defendant “after a demurrer to the
complaint is sustained without leave to amend and either party moves for
dismissal,” still requires a motion for dismissal. Such a motion could take the
form of an ex parte application or noticed motion. (See Cano v. Glover (2006)
143 Cal.App.4th 326, 330 [discussing dismissal under CCP § 581(f)(2) when
demurrer is sustained with leave to amend and plaintiff fails to amend within
time allowed].) Notwithstanding defendants’ request for judgment in favor of South
Gate Tween contained in the opposition (Opp. at 4:15-17), no such ex parte
application or noticed motion was filed.
In any event, because CCP § 581 states that the Court “may
dismiss” a complaint in the specified situations, a dismissal under CCP §
581(f)(1) is subject to the Court’s discretion. (Id. at 329 [“The phrase
“may dismiss” means discretionary dismissal”].) Here, for the reasons stated
below, the Court exercises its discretion to not dismiss the complaint against
South Gate Tweedy or enter judgment in its favor.
Defendants cite CCP § 426.50 for the assertion that
plaintiffs must have acted in good faith for the Court to grant the requested
leave. However, CCP § 426.50 applies to compulsory cross-complaints, which is
not at issue in this action.
But even if a showing of good faith were required, the Court
does not necessarily find that plaintiffs have acted in bad faith here. Defendants are correct that plaintiffs
alleged a breach of oral contract cause of action arising from the alleged
agreement to develop the Atlantic Park Plaza commercial property in the
original Complaint and First Amended Complaint. Plaintiffs then sought leave to
file the Second Amended Complaint, which the Court granted on February 3, 2022.
Plaintiffs abandoned the cause of action in the Second Amended Complaint. On
stipulation of the parties and order of the Court, plaintiffs subsequently
filed a Third Amended Complaint, which also did not contain a breach of oral
contract cause of action. Defendants demurred to the Third Amended Complaint. On
May 24, 2022, the Court sustained the demurrer and granted leave to amend as to
certain causes of action already alleged in the pleading.
On June 13, 2022, plaintiffs filed a Fourth Amended
Complaint that amended the causes of action specified in the May 24, 2022
minute order. However, in an ex parte application filed on June 10, 2022,
plaintiff sought an extension of the time to amend and shortened time to hear
plaintiff’s motion for leave to file a different Fourth Amended Complaint,
which was also filed on June 10, 2022. In that motion, plaintiff sought leave
to add the same breach of oral contract cause of action contained in the
instant motion. On June 13, 2022, the Court denied the ex parte application,
but the motion filed on June 10, 2022 remained on calendar for August 30,
2022.
Defendant demurred to the Fourth Amended Complaint. On
August 18, 2022, after the demurrer was sustained as to the causes of action
against SGT, the Court continued the August 30, 2022 motion to September 22,
2022 at plaintiff’s request. On August 24, 2022, plaintiff then filed a
“Supplemental Notice of Motion and Motion to File a Fifth Amended Complaint.”
Because South Gate Tweedy was never dismissed, because the
breach of oral contract cause of action was never tested on demurrer, and because
plaintiffs sought leave to reassert the breach of oral contract cause of action
before the demurrer to the Fourth Amended Complaint, the Court allows
plaintiffs leave to assert the breach of oral contract cause of action in the Fifth
Amended Complaint against all proposed defendants, including South Gate Tweedy,
LLC.
Moreover, because trial is not set to begin until May 1,
2023, there is no showing that prejudice to defendants would result from the
filing of the proposed Fifth Amended Complaint.
Defendants also argue that the declaration supporting the
motion does not comply with Rule of Court 3.1324(b) because counsel for
plaintiffs did not state when the facts giving rise to the amended allegations
were discovered. However, counsel declared that the Fifth Amended Complaint is
necessitated by the sustaining of the demurrer on August 18, 2022. (Nejadpour
Decl. ¶¶ 3, 5 [“The reasons for the Fifth Amended Complaint only arose on
August 18, 2022, with the Court’s Ruling”].) Considering that plaintiffs took
efforts to add the proposed breach of oral contract cause of action before the
demurrer to the Fourth Amended Complaint was sustained, counsel’s averment is
sufficient.
The motion is GRANTED. Plaintiffs are ordered to file the proposed Fifth Amended Complaint attached as Exhibit B to the declaration of counsel within two court days of this ruling.