Judge: Melissa R. Mccormick, Case: "Hoang vs. Ben Auto Haus, LLC", Date: 2022-09-08 Tentative Ruling

Defendant and Cross-complainant American Contractors Indemnity Company’s Motion for Leave to File First Amended Cross-complaint, and Order of Discharge and Award of Costs and Attorneys’ Fees and Order for Deposit, and Order of Dismissal

Defendant and cross-complainant American Contractors Indemnity Company filed a cross-complaint on August 31, 2020 alleging three causes of action against cross-defendants Ben Auto Haus, LLC and Ann N. Hoang:  breach of contract; statutory indemnity; and declaratory relief.  (Defendant’s cross-complaint erroneously refers to Hoang as Phong T. Doan in some places.)  Defendant now moves for leave to file a first amended cross-complaint, for an order of discharge and award of costs and attorneys’ fees and order for deposit, for an order of dismissal, and for an order restraining cross-defendants from prosecuting any proceeding against the Motor Vehicle Dealer Bond at issue here and dismissing any such actions already filed.  Plaintiff opposes defendant’s motion.  For the following reasons, defendant’s motion is denied.

A motion to amend a pleading before trial must “[s]tate what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located” and “[s]tate what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.”  Cal. R. Ct. 3.1324(a)(2), (a)(3).  A separate declaration must accompany the motion and must specify:  (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made earlier.  Cal. R. Ct. 3.1324(b).

Defendant’s motion and its accompanying declarations do not comply with these rules.  The court thus has no basis on which to conclude defendant’s motion for leave to file a first amended cross-complaint should be granted.  Most fundamentally, and in light of the causes of action alleged in defendant’s cross-complaint, defendant does not demonstrate why this amendment is necessary now or when defendant discovered the facts giving rise to the amendment.  Accordingly, the court also has no basis on which to conclude the numerous other orders defendant seeks should be issued.  In addition, defendant makes no persuasive argument that the other orders defendant seeks should be considered en masse, and, moreover, can and should be considered together with a motion seeking to file an amended pleading.

Plaintiff’s evidentiary objections to the Kasparian Declaration were not material to the disposition of the motion.

Defendant’s reply request for judicial notice is denied.  It is not necessary to seek judicial notice of documents in the court file for this case.

Plaintiff to give notice.