Judge: Malcolm Mackey, Case: 20STCV29246, Date: 2022-12-08 Tentative Ruling

Case Number: 20STCV29246    Hearing Date: December 8, 2022    Dept: 55

SHASHA ZHENG v. XIUYUAN HU                                                         20STCV29246

Hearing Date:  12/8/22,  Dept. 55

#7:      MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT.

Notice:  Okay

Opposition

 

MP:  Plaintiff/Cross-Defendant

RP:  Defendant/Cross-Complainant

 

Summary

 

On 8/3/20, Plaintiff/Cross-Defendant SHASHA ZHENG filed a Complaint alleging:  Starting August 2, 2017, the day after the parties stated date of marriage separation, Defendant/Cross-Complainant XIUYUAN HU withdrew $13,314.16 total from bank accounts that Defendant orally agreed were her separate property acquired outside of marriage, and Plaintiff relied on Defendant’s representations as a knowledgeable law student, regarding filing a Joint Petition for Dissolution of Marriage based on having no community assets.  Further, Defendant inflicted emotional distress when he falsely emailed to Plaintiff’s employer that Plaintiff had faked practicing her employing entity’s religion, and that Plaintiff hacked Defendant's email and was engaged in espionage for the Chinese government.

The Plaintiff’s causes of action are:

1.      FRAUD

2.      CONVERSION

3.      UNJUST ENRICHMENT

4.      DEFAMATION (withdrawn at 1/12/21 demurrer hearing).

5.      INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.

 

On 11/4/22, Plaintiff filed a motion for leave to file a proposed First Amended Complaint, adding a 6th Cause of Action for THEFT PURSUANT TO PENAL CODE §496, and 7th Cause of Action for BREACH OF FIDUCIARY DUTY - DUTY OF LOYALTY.

On 2/1/21, Defendant XIUYUAN HU filed a Cross-Complaint against Plaintiff and counsel STEPHEN M. MARTIN, alleging that MARTIN knew the statements in his press release pertaining to the Complaint are false, and ZHENG and MARTIN are the authors or principals of agents who wrote an article and recorded a YouTube video, containing defamatory statements about HU, and ZHENG withdrew some of HU’s money from their joint account.

Cross-Complainant’s claims are:

1. LIBEL.

2. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.

3. CONVERSION.

4. UNJUST ENRICHMENT.

5. PRELIMINARY AND PERMANENT INJUNCTION.

 

Trial is set for 7/31/23.

 

 

MP Positions

 

Moving party requests an order giving leave to file a First Amended Complaint, on bases including the following:

 

·         Plaintiff’s new counsel as of October 24, 2022 realized that there were missing causes of action for Theft pursuant to Penal Code §496 (proposed Sixth Cause of Action) and Breach of Fiduciary Duty - Duty of Loyalty (proposed Seventh Cause of Action).

·         Defendant would not suffer prejudice by said amendment since the Theft and Breach of Fiduciary Duty causes of action are extension of the Fraud and Conversion causes of action in the Complaint filed on August 3, 2020.  Further, the date for trial is July 31, 2023.

 

RP Positions

 

Opposing party advocates denying, for reasons including the following:

 

·         Moving party fails to state the allegations proposed to be added to her original complaint, by page, paragraph, and line number. Rules of Court, Rule 3.1324.

·         The only declaration on file was submitted by co-counsel, and fails to state when the purported previous text messages showing Defendant’s motive were discovered and explain why the request for amendment was not made earlier as required by California Rules of Court, Rule 3.1324(b).

·         The amendment lacks substantive merit.  It is unclear how the parties’ text exchanges that took place more than four years ago will have any bearing to this present action.  The amended pleading is probably subject to a future demurrer.

 

 

Tentative Ruling

 

The motion is granted.

Plaintiff may serve and file the proposed First Amended Complaint, as a separate document, within 10 days,

Courts may overlook harmless procedural errors made in the papers or proceedings that do not affect substantial rights of parties.  CCP §475;  Morgan v. AT & T Wireless Services, Inc. (2009) 177 Cal.App.4th 1235, 1252;  Reedy v. Bussell (2007) 148 Cal. App. 4th 1272, 1289 ("'Procedural defects which do not affect the substantial rights of the parties do not constitute reversible error….’”); McAllister v. County of Monterey (2007) 147 Cal. App. 4th 253 (court is bound to ignore any ‘defect … in the pleadings or proceedings which, in the opinion of said court, does not affect the substantial rights of the parties.’ ”);  Luri v. Greenwald (2003) 107 Cal. App. 4th 1119, 1127;  Holmes v. California Nat. Guard (2001) 90 Cal. App. 4th 297, 314;  B & P Dev. Corp. v. City of Saratoga (1986) 185 Cal. App. 3d 949, 953 (“Pleading defects which do not affect substantial rights of the parties should be disregarded.”);  Parker v. Los Angeles (1974) 44 Cal.App.3d 556, 566. 

“‘“[I]t is irrelevant that new legal theories are introduced as long as the proposed amendments 'relate to the same general set of facts….”’”   Atkinson v. Elk Corp. (2003) 109 Cal. App. 4th 739, 761.  That evidence of an added theory of liability would become admissible against opposing parties, after leave to amend a complaint, does not constitute the kind of prejudice supporting denial.  Hirsa v. Sup. Ct. (1981) 118 Cal. App. 3d 486, 490.

Courts generally do not consider the validity of proposed amendments to a pleading.  Kittredge Sports Co. v. Sup. Ct. (1989) 213 Cal. App. 3d 1045, 1047;  Atkinson v. Elk Corp. (2006) 109 Cal. App. 4th 739, 760 (“the better course of action would have been to allow … [plaintiff] to amend the complaint and then let the parties test its legal sufficiency in other appropriate proceedings.”). 

Recent substitution of counsel may sometimes be justification for amending a complaint.  Richter v. Adams (1941) 43 Cal. App. 2d 184, 187 (determining abuse of discretion in denial of leave to amend complaint, partly because recent substitution of attorney was one good reason for delay).

“[I]nstances justifying the court's denial of leave to amend are rare.”  Armenta ex rel. City of Burbank v. Mueller Co. (2006) 142 Cal.App.4th 636, 642.

If both parties wish to submit on the court’s tentative ruling, please call Department 55 at 213-633-0655.