Judge: Jon R. Takasugi, Case: 21STCV01824, Date: 2023-05-22 Tentative Ruling

Case Number: 21STCV01824    Hearing Date: May 22, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Plaintiff’s motion for leave to amend is DENIED.

            On 1/15/2021, Plaintiff Albert Bootesaz (Plaintiff) filed suit against the Bake Shop LA LLC, Gavin Alcoe, Gina Beringhele, and Peter Sobat (Defendants or Cross-Complainants), alleging: (1) rescission; (2) breach of contract; (3) conversion; and (4) fraud in the inducement.

            On 4/1/2021, Plaintiff filed a first amended complaint (FAXC) alleging: (1) fraud; and (2) intentional tort.

Cross-Complainants move for leave to file a second amended cross-complaint (SAXC) and to continue trial.

Discussion

            Cross-Complainants argue that a trial continuance and leave to amend is warranted because on the eve of trial XDEF produced over 370 pages of never-before-seen discovery, and XDEF “divulged crucial information at his deposition that implicated other essential parties and gave rise to additional causes of action, justice can only be upheld if XCMPLNTS are provided leave to amend their first amended complaint.” (Motion, 8: 9-11.) 

            Counsel explains that due to illness and unavailability, the FSC was the first possible time to bring this motion to the Court’s attention.

            After consideration, the Court finds leave to amend is not warranted.    

“This statutory provision giving the courts the power to permit amendments in furtherance of justice has received a very liberal interpretation by the courts of this state.” (Klopstock v. Superior Court (1941) Cal.2d 13, 19. The policy favoring leave to amend is so strong that it is an abuse of discretion to deny an amendment unless the adverse party can show meaningful prejudice, such as the running of the statute of limitations, trial delay, the loss of critical evidence, or added preparation costs.  (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.)

            Here, Cross-Complainants’ SAXC seeks to assert 9 causes of action, rather than the 2 previously asserted. As such, the SAXC marks an extensive expansive of the scope of the claims asserted. In order to justify such an expansion, Cross-Complainants needed to set forth a clear explanation as to the effect of the amendment, why the amendment was necessary, when the facts supporting amendment were discovered, and the reasons for why the request was not made earlier. (CRC Rules, Rule 3.1324.) However, the motion is wholly lacking in this explanation. For example, Cross-Complainants write:

Lastly, XDEF testified in his deposition that one of his identified witnesses Ms. Anita Rashtian had previously given him $58,500.00 to invest on her behalf. This money was given to XDEF years before he made XCMPLNTS sign a promissory note with predatory interests. (Id. at pp.326:17-21, 327:9-11 330:23-331:6; see also “Exhibit E” for a copy of the promissory note previously marked as Exhibit 23 to XDEF’s deposition.) Despite claiming that Ms. Rashtian gave him $58,500 to invest on her behalf, XDEF claims that he does not have her contact information. (“Exhibit C” at pp.325:2-326:4.) Furthermore, XDEF testified at his deposition that he attempted to cash Bake Shop’s check to Anita Rashtian by writing her name under the endorsement section of the check. (Id. at pp.393:13-394:25) These are just a few examples of the inconsistencies and examples of newly discovered information that justifies XCMPLNTS’ leave to amend their FAXC.

            (Motion, 6: 1-10.)

            These arguments lack any explanation as to how these “newly discovered” contentions give rise to new claims against new parties that could not have been discovered before. The fact of inconsistent testimony does not explain what new information was learned for the first time that put them on notice of new claims for the first time, especially when the expansion of new claims is increasing from 2 to 9 causes of action.

            Similarly, while Cross-Complainants note the last minute disclosure of nearly 400 pages of documents, they provide no substantive discussion as to what was contained in those documents that put them on notice of new claims for the first time. As such, Cross-Complainants seem to be arguing that the mere fact of XDEF’s inconsistent deposition testimony and the last minute disclosure entitles them to leave to amend: “XDEF’s own deposition testimony in conjunction with his document dump on the eve of trial should be deemed good cause to allow XCMPLNTS to amend their FAXC. XCMPLNTS will not be able to properly present their case at trial if they are not allowed to amend the FAXC to include necessary parties, and additional causes of action stemming from the events as alleged in XDEF’s complaint and in XCMPLNTS’ FAXC.” (Motion, 7: 8-12.)

            While a trial continuance would be warranted to avoid prejudice based on last minute disclosure, this act, on its own, does not entitle Cross-Complainants to vastly expand the scope of their claims on the eve of trial. Rather, to warrant leave to amend, Cross-Complainants must demonstrate that they learned of information for the first time at either the depositions or the in the last minute discovery disclosure, such that this was the first opportunity to pursue those claims. Cross-Complainants’ motion falls far short of that. Indeed, it remains unclear to the Court what exactly constitutes the “newly discovered information” here and what the new claims are that it has given rise to. As such, the Court has no way to determine whether or not Cross-Complainants could have pursued these claims at an earlier time

            Based on the foregoing, the Court denies Plaintiff’s motion for leave to amend.

It is so ordered.

Dated:  May    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

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