Judge Joel R Wohlfeil, Case 37-2021-00024970-CU-BC-CTL 2023-12-01 Tentative Ruling

Judge: Joel R Wohlfeil, Case: 37-2021-00024970-CU-BC-CTL, Date: 2023-12-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 30, 2023

12/01/2023 09:00:00 AM C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited Breach of Contract/Warranty Motion Hearing (Civil) 37-2021-00024970-CU-BC-CTL AMERICAN PRO-COATING LLC VS ACKAD [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Leave to Amend, 11/06/2023

1. The Motion (ROA # 169) of Plaintiff / Cross-Defendant American Pro-Coating, LLC ('Plaintiff') for an order compelling Cross-Complainant / Cross-Defendant Seagaze Properties, LLC ('Seagaze') to serve Code complaint responses to Form Interrogatory nos. 304.1, 305.1, 305.3, 305.8, 305.9, 305.11, 305.12, 305.13, 305.14, 309.1, 309.2, 311.4, 313.2, 314.1, 314.2, 314.4, 314.6 and 326.1, and for monetary sanctions, is GRANTED IN PART and DENIED IN PART.

Seagaze's objections are overruled and / or the responses are inadequate to nos. 304.1, 305.8, 305.9, 305.11, 305.12, 305.13, 305.14, 309.1, 311.4, 313.2 and 326.1. Defendant is directed to serve Code-compliant responses, without objections, within twenty (20) days of the hearing of this Motion.

The balance of Seagaze's objections are sustained and / or the responses are adequate.

Plaintiff's request for sanctions is DENIED. Seagaze's responses were not served without substantial justification.

_____ 2. The Motion (ROA # 200) of Cross-Complainants YUHONG E. ACKAD, COFFEE FUSION, LLC, and SEAGAZE PROPERTIES, LLC (collectively 'ACKAD') for leave to file their First Amended Cross Complaint ('FAC-C'), is GRANTED. Code Civ. Proc. 473(a) and 576.

The FAC-C is deemed served as of the date of this hearing; however, Cross-Complainants are ordered to immediately separately file with the Court an exact copy of the FAC-C that is presently attached to the declaration of Peter A. Zamoyski as 'Exhibit A' so that the FAC-C can be assigned a separate ROA number.

The Court is bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial, but this policy should be applied only where no prejudice is shown to the adverse party. Atkinson v. Elk Corp. (2003) 109 Cal. App. 4th 739, 761.

If the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the Court has discretion to deny leave to amend. Edmon and Karnow, Cal. Prac. Guide: Civ. Pro.

Before Trial (The Rutter Group 2023) at ¶ 6:655 (citing Hirsa v. Superior Court (1981) 118 Cal. App. 3d Calendar No.: Event ID: TENTATIVE RULINGS

3032324 CASE NUMBER: CASE TITLE: AMERICAN PRO-COATING LLC VS ACKAD [IMAGED] 37-2021-00024970-CU-BC-CTL 486, 490).

In this case, Cross-Defendants do not argue that Cross-Complainants have been dilatory. Even if delay was demonstrated, the only potential prejudice is the inability to file a summary adjudication motion attacking the new causes of action. However, as trial is currently scheduled for June 14, 2024, it appears there will be ample time to file a motion for summary adjudication. Also, the Court could authorize an additional short continuance if necessary.

Finally, whether the new causes of action are substantively improper will be the subject of a future motion(s) attacking the pleadings and / or addressing the evidence. See Atkinson v. Elk Corp., supra at 760 ('... we believe that the better course of action would have been to allow Atkinson to amend the complaint and then let the parties test its legal sufficiency in other appropriate proceedings.').

_____ 3. The Motion (ROA # 204) of Cross-Complainants YUHONG E. ACKAD and COFFEE FUSION, LLC (collectively 'ACKAD') to (A) set the date of valuation of Coffee Fusion, LLC's shares, and (B) dissociate Cross-Defendant JOSEPH P. MARTINEZ ('MARTINEZ') from his LLC membership in Coffee Fusion, LLC, will be HEARD.

Ackad's Request (ROA # 206) for judicial notice is GRANTED IN PART and DENIED IN PART. The Court takes judicial notice of the dates only on which Exh's '1 - 3' were filed with the Court; otherwise, the Request is DENIED.

Cross-Complainants' reply brief (ROA # 214) references an opposition brief filed by Cross-Defendant Martinez. However, this opposition brief was not filed with the Court. The clerk left two voicemail messages for counsel for Cross-Defendants, but these telephone calls were not returned. Counsel should be prepared to discuss why the opposition brief was not filed and whether this Motion should be continued so that the Court can consider the opposition.

Calendar No.: Event ID: TENTATIVE RULINGS

3032324