Judge: Cynthia A Freeland, Case: 37-2022-00020503-CU-FR-NC, Date: 2023-09-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - August 31, 2023

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

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  Fraud Motion Hearing (Civil) 37-2022-00020503-CU-FR-NC CAKE ENTERPRISES INC VS WISE [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 08/08/2023

Defendant/Cross-Complainant Michael Mellano ('Cross-Complainant')'s motion for leave to file a Third Amended Cross-Complaint (the 'TACC') is granted.

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.

The court construes the lack of opposition from any interested party as a concession of the motion's merits. See San Diego Rules of Court, Rule 2.1.19.B. In addition, the court finds that Cross-Complainant has demonstrated good cause for leave to amend. Notably, no interested party has demonstrated any resulting prejudice should the court grant leave to amend. Indeed, Plaintiffs/Cross-Defendants Cake Enterprises, Inc. and Community Veterans of Malibu, LLC (collectively, 'Cross-Defendants') filed a Notice of Non-Opposition on August 21, 2023. See ROA No. 198. Moreover, the court finds that Cross-Complainant was not dilatory in seeking leave to amend. See, e.g., Rickley v. Goodfriend (2013) 212 Cal. App. 4th 1136, 1159 (motions for leave to amend are appropriately granted as late as the first day of trial or even during trial); Lehman Decl., ¶¶ 4-6. Furthermore, no evidence has been presented that Cross-Complainant is seeking leave to amend in bad faith or to gain an unfair advantage in this action. The TACC adds additional causes of action against Cross-Defendants, though various elements of the proposed claims were included in prior pleadings. The TACC also adds Cake Enterprises, Inc.'s Director and Chief Financial Officer, Saad Salmi 'Geo' Pattah, as a Cross-Defendant. The claims against Mr. Pattah and Cross-Defendants arise from a common nucleus of operative facts, and Mr.

Pattah will have ample time to conduct discovery on those claims given the litigation's current posture.

In light of the foregoing, the court grants Cross-Complainant's motion for leave to amend.

Cross-Complainant shall file and serve the TACC within ten (10) days of this hearing.

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

3006912 CASE NUMBER: CASE TITLE:  CAKE ENTERPRISES INC VS WISE [IMAGED]  37-2022-00020503-CU-FR-NC 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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