Judge: Maurice A. Leiter, Case: 20STCV19934, Date: 2022-12-15 Tentative Ruling

Case Number: 20STCV19934    Hearing Date: December 15, 2022    Dept: 54

Hearing Date: December 15, 2022

Department 54, Judge Maurice A. Leiter

Motion for Reconsideration

Moving Party: Cross-Complainant/Defendant Michael Edward Bass

Responding Party:  Plaintiff/Cross-Defendant Khaled J. Al-Sabah

T/R:    CROSS-COMPLAINANT’S MOTION FOR RECONSIDERATION IS GRANTED IN PART.

CROSS-DEFENDANT’S DEMURRER TO THE SECOND AMENDED CROSS-COMPLAINT IS SUSTAINED WITH LEAVE TO AMEND.

CROSS-COMPLAINANT TO FILE AND SERVE THE THIRD AMENDED COMPLAINT WITHIN 5 DAYS OF NOTICE OF RULING. CROSS-DEFENDANT TO FILE AND SERVE A RESPONSE WITHIN 15 DAYS THEREAFTER.

            CROSS-COMPLAINANT TO NOTICE. 

If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers, opposition, and reply.

            BACKGROUND

            On July 15, 2020, Plaintiff Khaled J. Al-Sabah filed the operative first amended complaint against Defendants Michael Edward Bass, Ronald Richards and Usman Shaikh, asserting causes of action for breach of fiduciary duty, breach of contract, theft, money had and received, conversion and accounting. Al-Sabah alleges that Bass was to be Al-Sabah’s “representative” in the US. Al-Sabah alleges he wired Bass $2.5 million to hire attorney Defendant Shaikh to represent Al-Sabah in an unrelated embezzlement lawsuit. Al-Sabah alleges that Bass kept $2 million of his money.

            On November 18, 2020, Bass filed a cross-complaint against Al-Sabah, asserting causes of action for (1) breach of contract; (2) fraud; (3) UCL violations; (4) unjust enrichment; (5) money had and received; (6) open book account; and (7) breach of the implied covenant of good faith and fair dealing. After two demurrers, Bass filed the operative second amended cross-complaint asserting causes of action for (1) breach of contract; (2) fraud; (3) breach of the implied covenant of good faith and fair dealing; (4) UCL Violations; (5) civil conspiracy; (6) tortious interference; (7) conversion; (8) unjust enrichment; and (9) open book account. Bass alleges Al-Sabah engaged Bass as his “representative” in US for $5 million dollars. Bass alleges that he was also “induced” to “forgo legal claims” worth $10 million against third-party Victor Noval. Bass alleges Al-Sabah has failed to pay him $5 million.

            On August 25, 2022 the Court sustained Al-Sabah’s demurrer to the second amended cross-complaint without leave to amend.

ANALYSIS

A non-prevailing party may make a motion to reconsider and enter a different order under the following conditions: (1) brought before the same judge that make the order sought to be reconsidered; (2) made within 10 days after service upon the party of the notice of entry of the order; (3) based on new or different facts, circumstances or law than those before the court at the time of the original ruling; (4) supported by a declaration stating the previous order, by which judge it was made, and the new or different facts, circumstances or law claimed to exist; and (5) the motion must be made and decided before entry of judgment.  (CCP § 1008.) 

Bass moves for reconsideration of the Court’s August 25, 2022 order. Bass argues the Court erred in considering the April 4, 2022 amended cross-complaint and should not have stricken the May 24, 2022 amended cross-complaint. Bass contends he believed the May 24, 2022 cross-complaint was operative because the parties agreed that Bass could file another amended cross-complaint after the April 4, 2022 amended cross-complaint, and because the demurrer addressed the May 24, 2022 cross-complaint. Bass says he would have made a different argument in opposition - timeliness - had he known the Court was going to strike the later-filed cross-complaint. Bass asks the Court to reconsider its previous order and allow Bass leave to file a third amended cross-complaint.

In opposition, Al-Sabah asserts Bass has failed to present new or different facts or circumstances. Al-Sabah argues that Bass could have made these arguments in opposition to the motion but failed to do so.

At the time of the Court’s August 25, 2022 ruling, the Court was not aware that Al-Sabah had agreed to allow Bass to file the May 24, 2022 cross-complaint. In reply, Bass presents emails between the parties’ counsel showing this. As the parties agreed Bass could file the May 24, 2022 cross-complaint, the Court will allow Bass leave to amend. The Court notes, however, that the proper procedure for this circumstance is to file a stipulation and proposed order.

            Bass’ motion is GRANTED in part.