Judge: Kevin C. Brazile, Case: 22STCV12841, Date: 2023-01-18 Tentative Ruling

Hearing Date: January 18, 2023

Case Name: Craig Fry & Associates, LLC v. Fire Protection Group, et al.

Case No.: 22STCV12328 

Matter: Motion for Leave to File Second Amended Complaint

Moving Party: Plaintiff Craig Fry & Associates, LLC

Responding Party: Defendants Fire Protection Group and The JBS Group, LLC

Notice: OK

Ruling: The Motion is stricken or denied without prejudice, as set forth below.

Defendants to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

This is an action in which Plaintiff Craig Fry & Associates, LLC seeks payment for unpaid consulting services for Defendants Fire Protection Group (“FPG”) and The JBS Group, LLC (“JBS”).  Plaintiff asserts causes of action for (1) account stated, (2) open book account, and (3) account stated. 

Plaintiff now seeks leave to file a second amended complaint.  Plaintiff states, “the only changes between the First Amended Complaint and the Second Amended Complaint is that ¶  5 was deleted which mentioned the defendant's principal's name [Matthew Barkohanai] at the defendant's request and the third cause of action against JBS Group, LLC inserted the name of the Stanley Drive address in lieu of the Evelyn Drive address, both houses being titled in Beverly Hills, California and both owned by Plaintiff's client.”

Defendants FPG and JBS oppose the Motion because (1) Plaintiff is an unrepresented LLC; (2) the Motion does not comply with the California Rules of Court; and (3) the new allegations are time-barred.  

The Court may, in the furtherance of justice, and upon any terms as may be proper, allow a party to amend any pleading.  (Code Civ. Proc. §§ 473, 576.)  In general, California courts liberally exercise discretion to permit amendment of pleadings in light of a strong policy favoring resolution of all disputes between parties in the same action.  (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.)  “[T]here is a strong policy in favor of liberal allowance of amendments.”  (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 296.)  Pursuant to this policy, requests for leave to amend generally will be granted unless the party seeking to amend has been dilatory in bringing the proposed amendment before the Court, and the delay in seeking leave to amend will cause prejudice to the opposing party if leave to amend is granted.  (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490; Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565.)  The decision on a motion for leave is directed to the sound discretion of the trial court.  (See generally Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2014) ¶¶ 6:637 et seq.)

On November 1, 2022, the Court granted Defendants’ motion to disqualify Plaintiff’s counsel.  Since that time, Plaintiff has not apparently retained new counsel.  Because Plaintiff is an unrepresented corporate entity, the Motion is stricken.  (See Caressa Camille, Inc. v. Alcoholic Beverage Control Appeals Bd.  (2002) 99 Cal.App.4th 1094, 1101 [“[I]t is well-established in California that a corporation cannot represent itself in a court of record either in propria persona or through an officer or agent who is not an attorney.”].)

The Court will set an OSC re: Dismissal for Failure to Obtain Counsel.

If Plaintiff retains counsel in time for the Motion hearing, the Court would deny the Motion, without prejudice, because Plaintiff fails to explain (1) when it discovered the fact that the wrong address was listed and (2) why this amendment could not be made earlier.  (Cal. Rules of Court, Rule 3.1324(b).)  As Defendants put it, Plaintiff should explain why it “did not know that the First Amended Complaint listed a property he did not actually perform services on.”

Defendants to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.