Judge: Elaine Lu, Case: 21STCV23074, Date: 2023-04-17 Tentative Ruling
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tentative and elect not to appear at the hearing, the opposing party may
nevertheless appear at the hearing and argue the motion, and the Court may
decide not to adopt the tentative ruling.
2.
For any motion where no parties submit to the tentative ruling in
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4. IN ORDER TO IMPLEMENT
PHYSICAL DISTANCING GOING FORWARD AND UNTIL FURTHER NOTICE, THE COURT STRONGLY
ENCOURAGES ALL COUNSEL AND ALL PARTIES TO APPEAR TELEPHONICALLY FOR NON-TRIAL
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notice, Department 26 strongly encourages telephonic appearances for motion
hearings that do not require the presentation of live testimony.
Case Number: 21STCV23074 Hearing Date: April 17, 2023 Dept: 26
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EDWARD D. FAGAN, Plaintiff, v. GERARD JOSEPH; RIA JOSEPH; TRAFICO PRODUCTIONS LLC; LIBERTY LIF
LLC; GIANT FISH LLC; MARTIN MERRIMENT COMPANIES INC.; NICK KLAASSEN and NICK KLASSEN
dba Prosperity Business & Wealth Solutions; JENNIFER MAKEGHEMI; WELLS FARGO BANK NA; HSBC PLC; HSBC BANK USA,
N.a., et al. Defendants. |
Case No.: 21STCV23074 Hearing Date: April 17, 2023 [TENTATIVE] order RE: Plaintiff’s motion for leave to file a
second amended complaint |
Procedural Background
On June
21, 2021, Plaintiff Edward D. Fagan (“Plaintiff”) filed the instant fraud
action. On May 24, 2022, Plaintiff filed
the operative First Amended Complaint (“FAC”) against Defendants Gerard Joseph;
Ria Joseph; Trafico Productions, LLC; Liberty Lif, LLC, Giant Fish, LLC; Martin
Merriment Companies Inc.; Nick Klaassen and Nick Klassen dba Prosperity
Business & Wealth Solutions; Jennifer Makeghemi; Wells Fargo Bank, N.A.;
HSBC Bank PLC; and HSB Bank USA, N.A. The
FAC asserts fourteen causes of action for (1) Declaratory Relief, (2)
Negligence, (3) Fraud, (4) Civil Theft, (5) RICO, Racketeering & Money
Laundering, (6) Aiding & Abetting, (7) Conversion, (8) Unjust Enrichment,
(9) Involuntary Bailment, (10) Breach of Contract, (11) Negligent Breach of
Contract, (12) California UCC Violation, (13) Negligent Breach of Contract as
to Defendant Wells Fargo Bank, N.A., and (14) California UCC Violations as to
Defendant Wells Fargo Bank, N.A.
On
July 22, 2022, Defendant Wells Fargo Bank, N.A. (“Wells Fargo”) filed a demurrer
to the FAC. On July 25, 2022, Defendant
HSBC Bank USA, N.A. (“HSBC USA”) filed a demurrer to the FAC.
On
October 31, 2022, Plaintiff filed the instant motion for leave to file a second
amended complaint to address defects raised by Defendants Wells Fargo’s and
HSBC USA’s demurrers. On November 21,
2022, Defendants Wells Fargo and HSBC USA each filed an opposition to the
instant motion for leave to file a second amended complaint.
On
December 5, 2022, the Court sustained Defendants Wells Fargo’s and HSBC USA’s demurrers
to the FAC without leave to amend.
(Order 12/5/22.) On February 1,
2023, the Court entered a judgment of dismissal of Defendants Wells Fargo and
HSBC USA. On March 23, 2023, the Court
entered an amended judgment of dismissal as to Wells Fargo. On April 10, 2023, Plaintiff dismissed HSBC
Bank PLC from the FAC without prejudice.
In
addition, on April 10, 2023, Plaintiff filed a notice of appeal of the judgments
of dismissal of Defendants Wells Fargo and HSBC USA after the Court’s December
5, 2022 order sustaining their demurrers without leave to amend.
“Under [Code of Civil Procedure] section
916, ‘the trial court is divested of’ subject matter jurisdiction over any
matter embraced in or affected by the appeal during the pendency of that
appeal.” (Varian Medical Systems,
Inc. v. Delfino (2005) 35 Cal.4th 180, 196–197.) “The purpose of the
automatic stay under section 916 is to preserve ‘the status quo until the
appeal is decided’ [Citation], by maintaining 'the rights of the parties in the
same condition they were before the order was made[.]” [Citation]. Otherwise,
the trial court could render the ‘appeal futile by altering the appealed
judgment or order by conducting other proceedings that may affect it.’” (Id. at p.198.) Here amending this motion for leave to amend
would affect each cause of action and could render the appeal futile. Accordingly, the Court lacks jurisdiction to
hear this motion at this time.
Therefore, Plaintiff’s Motion for Leave to
File a Second Amended Complaint is taken off calendar. Upon the filing of the remittitur, Plaintiff
may refile this motion for leave to amend.
Court Clerk is to provide notice of this
order and file proof of service of such.
DATED: April 17, 2023 ___________________________
Elaine Lu
Judge of the Superior Court