Judge: Martha K. Gooding, Case: 2021-01185321, Date: 2022-12-05 Tentative Ruling

Motion for Leave to Amend

The Motion by Defendant/Cross-Complainant Park Aliso Commercial Center, Ltd. (“Park Aliso”) for leave to file First Amended Cross-Complaint, is GRANTED.

Park Aliso moves for leave to file an amended cross-complaint to add causes of action for fraud, negligent misrepresentation, breach of the implied covenant of good faith and fair dealing, and allegations supporting the same.

The Court finds the amendment should be allowed “in furtherance of justice,” and to prevent the possible forfeiture of claims. (Code Civ. Proc. § 473, subd. (a)(1); Code Civ. Proc., § 576.)

The Court disagrees with the contention by Plaintiff/Cross-Defendant Fitness International, LLC (“Fitness International”) that Park Aliso necessarily knew of these potential claims when it opposed Fitness International’s motion for summary judgment.  The mere breach of an agreement generally will not give rise to fraud claims unless there is evidence of a lack of present intent not to perform. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 480-481.) Park Aliso’s counsel has explained how Park Aliso only recently learned of such supporting information through the deposition of Fitness International’s VP Senior Real Estate Counsel. (Taran Decl. at ¶ 2.)

Fitness International also argues that the proposed claims would fail because there is no evidence of a “supposed grand fraudulent scheme.” But it certainly is not clear that the proposed claims would be futile; thus, the better course is to allow the amendment. (Howard v. Cty. of San Diego (2010) 184 Cal.App.4th 1422, 1428.)

Lastly, the Court notes that Park Aliso included a copy of the proposed amended pleading and the requisite supporting declaration. (Cal. R. Ct. Rule 3.1324.)

Park Aliso is ordered to file and serve its First Amended Cross-Complaint, in the form submitted with its Motion, no later than 12/16/2022.

Park Aliso is ordered to give notice.