Judge Cynthia A Freeland, Case 37-2022-00014720-CU-BC-NC 2023-09-15 Tentative Ruling

Judge: Cynthia A Freeland, Case: 37-2022-00014720-CU-BC-NC, Date: 2023-09-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - September 14, 2023

09/15/2023 01:30:00 PM N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited Breach of Contract/Warranty Motion Hearing (Civil) 37-2022-00014720-CU-BC-NC MARJIYA VS KHALIL [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Leave to Amend, 08/21/2023

Plaintiff/Cross-Defendant Denya, LLC ('Plaintiff')'s motion for leave to file a Fourth Amended Complaint (the 'FAC') is denied.

Defendants/Cross-Complainants MTM Investments, LLC ('MTM') and LBM Investments ('LBM' and, together with MTM, 'Defendants')'s objections to Plaintiff's reply and supporting declaration are sustained to the extent Plaintiff attempts to introduce new matter or evidence for the first time as part of its reply papers. See Jay v. Mahaffey (2013) 218 Cal. App. 4th 1522, 1537 ('The general rule of motion practice . . . is that new evidence is not permitted with reply papers.'); American Drug Stores v. Stroh (1992) 10 Cal. App. 4th 1446, 1453 ('Points raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.').

California Code of Civil Procedure § 473 provides that '[t]he court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading . . . .' Cal. Code Civ. P. § 473(a)(1).

Leave to amend is liberally allowed. See Bettencourt v. Hennessy Industries, Inc. (2012) 205 Cal. App. 4th 1103, 1111. The court must apply this policy of great liberality 'at any stage of the proceedings,' absent prejudice to the adverse party. See Atkinson v. Elk Corp. (2003) 109 Cal. App. 4th 739, 761.

Prejudice exists where the amendment would result in a delay of trial, along with loss of critical evidence, added costs of preparation, or an increased burden of discovery. See Magpali v. Farmers Group, Inc.

(1996) 48 Cal. App. 4th 471, 486-488. An unwarranted delay in presenting a proposed amendment, resulting in prejudice to the opposing party, is also a valid reason for denial. See Hirsa v. Sup. Ct. (1981) 118 Cal. App. 3d 486, 490.

While the court is cognizant of the liberal policy favoring amendment at any stage of the proceedings, Plaintiff nevertheless must demonstrate good cause for the proposed FAC. The court finds that Plaintiff has failed to do so. To start, the court, in ruling on Defendants' and former Defendants Tony Khalil's and Tayseer Odeh's demurrer to Plaintiff's and former Plaintiff Amer Marjiya's Third Amended Complaint (the 'TAC'), determined that Mr. Marjiya lacks standing to assert causes of action for breach of contract, rescission, and declaratory relief in his individual capacity because the TAC failed to sufficiently allege the existence of a valid contract to which Mr. Marjiya was a party in his individual capacity. Plaintiff contends that the proposed FAC does not seek to impermissibly re-add Mr. Marjiya as a plaintiff to this action or to reintroduce previously dismissed causes of action; however, a review of the FAC belies such an assertion. More specifically: (1) Mr. Marjiya is still listed as a party in his individual capacity at ¶ 4; (2) Mr. Marjiya is still referenced as a plaintiff at numerous points of the FAC including, but not limited to, ¶¶ 11-19, 21, 23-24, and 27-28; (3) the first cause of action for breach of contract states that it is 'By Calendar No.: Event ID: TENTATIVE RULINGS

2995145 CASE NUMBER: CASE TITLE: MARJIYA VS KHALIL [IMAGED] 37-2022-00014720-CU-BC-NC Plaintiff Marjiya Against Defendant Khalil, Defendant Odeh, and DOES 1 through 20'; (4) the third cause of action for rescission states that it is 'By Plaintiff Marjiya against Defendant Khalil, Defendant Odeh, and DOES 1 through 20'; and (5) the sixth cause of action for declaratory relief states that it is 'Against All Defendants' and plainly references Mr. Marjiya, Mr. Khalil, and Mr. Odeh in their individual capacities.

The court sustained the prior demurrer as to the first, third, and sixth causes of action as to Mr. Marjiya's claims without leave to amend while making it clear that Plaintiff and Mr. Marjiya had failed to plead the existence of contract involving Mr. Marjiya, Mr. Khalil, and Mr. Odeh in their individual capacities. See ROA No. 50. Finally, if a proposed amendment is futile because the allegations could not state a viable claim, the motion may properly be denied. See Yee v. Mobilehome Park Rental Review Bd. (City of Escondido) (1998) 62 Cal. App. 4th 1409, 1429. In this case, Plaintiff has provided no basis or other good cause for the court to revisit that determination. The foregoing constitutes sufficient grounds to deny the motion.

In addition, while Plaintiff contends that its proposed amendments are based on information discovered during the depositions of Defendants' respective PMKs in January 2023, the court must respectfully agree with Defendants that, based on previous iterations of Plaintiff's operative pleading, this is not new information. More specifically, Plaintiff, at various times in its initial Complaint, Second Amended Complaint, and Third Amended Complaint, alleged that none of Sol Capital's members made their required initial contributions as part of a conspiracy to defraud Plaintiff and/or Mr. Marjiya. Plaintiff has not been diligent in now seeking to assert additional causes of action for fraudulent inducement and negligent misrepresentation. In addition, re-adding Mr. Khalil and Mr. Odeh as individual defendants in this matter, without good cause, will occasion additional discovery and prejudice Defendants because construction on the subject property is being delayed and current permits are expiring.

In light of the foregoing, the court denies Plaintiff's motion for leave to file a Fourth Amended Complaint.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, September 15, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of September 15, 2023.

If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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