Judge: Kevin C. Brazile, Case: 22STCV37885, Date: 2023-12-07 Tentative Ruling

Hearing Date: December 7, 2023

Case Name: Pappas v. Namazikhah DMD, Inc., et al.

Case No.: 21STCV19741

Matter: Motion for Leave to File Second Amended Complaint

Moving Party: Plaintiff Tony Protopappas

Responding Party: Defendant Robert M. Hindin, joined by Defendants M.S. Namazikhah 

D.M.D and Essential Endodontics, Inc.

Notice: OK

Ruling: The Motion is denied.

Moving party 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 a fraudulent transfer action relating to a stipulated judgment in BC457138.  

Plaintiff Tony Protopappas seeks leave to file a second amended complaint (“SAC”) that (1) adds Tony Protopappas to the caption of this case as he has substituted in for his brother and (2) adds two new plaintiffs: Abraham Ghorbanian DDS MS and Ghorbanian, Saifee DDS Inc. 

Essentially, the two proposed plaintiffs are alleged to also be creditors of M.S. Namazikhah D.M.D., but via a different, unrelated lawsuit—BC516805.  

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.)

Defendant Robert M. Hindin contends the Motion should be denied because the proposed SAC fails to state sufficient facts, is barred by collateral estoppel, is subject to bankruptcy preemption, and there is a misjoinder of parties.

The proper vehicle by which to present these arguments, however, is a demurrer or other appropriate motion.

Hindin also contends that he would be prejudiced because the SAC would make his summary judgment motion meaningless and he would need to conduct extensive discovery, yet trial is fast approaching.  

The trial date in this matter is set for January 29, 2024.

The Court finds that there has been a long, unexplained delay that would prejudice Defendants by delaying trial and increasing the costs of litigation through additional discovery.  

The only explanation for the delay is that the proposed parties first engaged Plaintiff’s counsel in October 2023.  But, the proposed plaintiffs have seemingly known about their own claims.  If they wish to assert such claims via a different lawsuit, they can do so.  They do not, however, have the right to delay a lawsuit that is less than two months from trial and that has been pending since May 2021.   

The Motion is denied.

Moving party 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.