Judge Mark E. Windham, Case Number: 21STLC06144, Date: 2024-02-21 Tentative Ruling

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Plaintiff Joshua Rogers’ Motion for Leave to File Third Amended Complaint is GRANTED IN PART AND DENIED IN PART. LEAVE TO AMEND IS GRANTED AS TO SUBSTITUTING ENVITAE, AN UNINCORPORATED ASSOCIATION, AS THE PLAINTIFF AND DISMISSING DEFENDANT ADRIANA OH. LEAVE TO AMEND IS DENIED AS TO THE FRAUD CAUSE OF ACTION.

THE THIRD AMENDED COMPLAINT IS TO BE FILED AND SERVED WITHIN 10 DAYS OF THIS ORDER.

Plaintiff Joshua Rogers (“Plaintiff”) filed the instant action against Defendants Torino Carr (“Defendant Carr”) and Adriana Oh (erroneously sued as Andrea Oh) (“Defendant Oh”) on August 23, 2021. The Complaint asserted causes of action for breach of contract and common counts. On December 28, 2021, Plaintiff filed the First Amended Complaint, alleging causes of action for breach of contract, fraud, unjust enrichment, and theft by false pretense. On April 15, 2022, the Court sustained Defendants’ demurrer to the First Amended Complaint to the cause of action for theft by false pretense without leave to amend, and the fraud cause of action with leave to amend. (Minute Order, 04/15/22.) The demurrer to the causes of action for breach of contract and unjust enrichment was overruled. (Ibid.)

Plaintiff filed the Second Amended Complaint on May 9, 2022. On August 8, 2022, the Court sustained Defendants’ demurrer to the Second Amended Complaint without leave to amend as to the fraud cause of action. (Minute Order, 08/08/22.) Defendants filed an answer to the Second Amended Complaint on August 29, 2022.

Plaintiff filed the instant Motion for Leave to File Third Amended Complaint on December 13, 2023. No opposition has been filed to date.

Plaintiff moves for leave to amend the Second Amended Complaint by dismissing Defendant Andrea Oh, substituting Plaintiff’s company as the real party in interest, and adding a cause of action for promissory fraud. As set forth in the Motion, leave to amend is permitted under Code of Civil Procedure section 473, subdivision (a) and section 576. Also, a motion for leave to amend a pleading must comply with the procedural requirements of California Rules of Court, Rule 3.1324, which requires a supporting declaration to set forth explicitly what allegations are to be added and where, and explicitly stating what new evidence was discovered warranting the amendment and why the amendment was not made earlier. The motion must also include (1) a copy of the proposed and numbered amendment, (2) page and line specifications for the allegations that would be deleted and added, and (3) a declaration specifying the effect, necessity and propriety of the amendments, date of discovery and reasons for delay. (Cal. Rules of Court, Rule 3.1324, subds. (a), (b).) The policy favoring amendment and resolving all matters in the same dispute is “so strong that it is a rare case in which denial of leave to amend can be justified. . . .” (Magpali v. Farmers Group (1996) 48 Cal.App.4th 471, 487.) However, “[a] different result is indicated ‘where inexcusable delay and probable prejudice to the opposing party’ is shown. [Citation].” (Ibid.)

Plaintiff’s Motion is supported by a declaration explaining what changes are to be made to the Second Amended Complaint and a copy of the proposed Third Amended Complaint. (Motion, Rogers Decl., ¶¶4-6.) The Motion also explains that the necessity of these changes arose upon Plaintiff retaining new counsel who identified the company “ENVITAE” as the real party in interest. (Id. at ¶3.) Specifically, “ENVITAE” is the entity that entered into the short-term lease with Defendants. (Id. at ¶3; see Compl., Exh 1.) Plaintiff also intends to dismiss Defendant Oh from the action. Finally, Plaintiff seeks leave to add a cause of action for promissory fraud. The Motion, however, does not explain why a cause of action for promissory fraud based on the credit card chargeback should be permitted. The Court ruled on the demurrer to the Second Amended Complaint that the fraud cause of action, which referred to the credit card chargeback, was insufficient. (Minute Order, 08/08/22, pp. 2-3.) Plaintiff admits that there are no new facts regarding this cause of action. (Id. at ¶7.) Therefore, leave to amend is granted only as to Plaintiff’s name and dismissal of Defendant Oh. Leave to amend is denied as to the promissory fraud cause of action.

THE THIRD AMENDED COMPLAINT IS TO BE FILED AND SERVED WITHIN 10 DAYS OF THIS ORDER.