Judge Michael E. Whitaker, Case Number: 23SMCV03707, Date: 2023-10-05 Tentative Ruling

Judge: Michael E. Whitaker, Case: 23SMCV03707, Date: 2023-10-05 Tentative Ruling

This case arises over a dispute concerning an increase in membership fees Defendant Gold’s Gym California, LLC (“Defendant”) began charging Plaintiff Joseph Robert Giannini (“Plaintiff”) to access the Gold’s Gym in Venice, California.

On August 10, 2023, Plaintiff filed the original complaint in this action. Four days later, on August 14, 2023, Plaintiff voluntarily filed the first amended complaint, alleging three causes of action for (1) breach of Business & Professions Code section 17200; (2) breach of the Unruh Act; and (3) bad faith denial of the existence of a contract against Defendant and against Gold’s Gym Club Holding, LLC. At Plaintiff’s request, the Court dismissed Gold’s Gym Club Holding, LLC on November 9, 2023.

On December 14, 2023, the Court granted Defendant’s motion for judgment on the pleadings as to the first and third causes of action, and granted Plaintiff leave to amend the first cause of action only on or before January 11, 2024. (See Minute Order, December 14, 2023.)

On January 16, 2024, Plaintiff filed a Second Amended Complaint, alleging seven causes of action for (1) breach of contractual covenant of good faith and fair dealing; (2) breach of Business & Professions Code section 17200; (3) breach of the Unruh Act; (4) breach of Civil Code section 3345; (5) breach of Corporate Code section 1507; (6) bad faith denial of insurance contract benefits; and (7) request for declaration that the Defendants are a single enterprise “Gold’s Gym.” The Second Amended Complaint also adds Defendants RSG Group USA, Inc.; Gold’s Gym Club California, LLC; Sebastian Schoepe; Jeff Suender; and Tivity Health Inc. (dba Silver Sneakers). The first five causes of action are alleged against all defendants except Silver Sneakers, the sixth cause of action is alleged against Silver Sneakers only, and the seventh cause of action appears to request declaratory relief and does not indicate against whom it is alleged.

Original defendant Gold’s Gym California, LLC (“Defendant”) now demurs to all causes of action except the sixth (which is alleged only as to Silver Sneakers) on the grounds that they fail to state facts sufficient to constitute a cause of action, pursuant to Code of Civil Procedure section 430.10, subdivision (e). Plaintiff opposes the demurrer and Defendant replies.

After Defendant filed the demurrer, Plaintiff also moved for leave to deem the second amended complaint filed. The Court has issued a separate tentative ruling regarding Plaintiff’s concurrent motion for leave.

Code of Civil Procedure section 430.41, subdivision (a) requires that “Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.”

The statute further requires “As part of the meet and confer process, the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies.” (Code Civ. Proc., § 430.41, subd. (a)(1).) “The party who filed the complaint, cross-complaint, or answer shall provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency.” (Ibid.)

“The parties shall meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. § 430.41, subd. (a)(2).) “The demurring party shall file and serve with the demurrer a declaration stating either” the means by which the parties met and conferred, or that the party who filed the pleading subject to demurrer failed to respond to the meet and confer request. (Id., subd. (a)(3).)

On February 1, 2024, Defense counsel sent Plaintiff a six page meet and confer letter explaining "our intent is to identify the specific causes of action that we believe are subject to demurrer and/or motion to strike and direct you to the legal support for our position." The next day Plaintiff sent an email acknowledging receipt and requesting ten days to research counsel's claims.

A meet and confer conference was scheduled for Monday February 12, 2024 at 11:00 a.m. Plaintiff’s cell phone did not ring. Plaintiff called defense counsel around noon. A conference was held where both defense counsel attended. Plaintiff agreed with defense counsels’ contention. Plaintiff countered that in Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015 [84 Cal.Rptr.3d 642] [acknowledging rule but finding it inapplicable where new cause of action "directly responds" to trial court's reason for sustaining the demurrer was applicable. Plaintiff further argued leave to amend is liberally granted, he had directly asked the Court as the hearing for leave to amend the Complaint, and that he would file a Motion for Leave to file the Second Amended Complaint, and requested Defendant’s cooperation so that motions could be filed and held concurrently.

However, the declaration filed in connection with Defendant’s demurrer indicates:

3. On January 27, 2024, January 31, 2024 and February 1, 2024, my colleague Wendy Shiff emailed Plaintiff requesting a date upon which to telephonically meet and confer with respect to the proposed demurrer. On February 1, 2024, to initiate the meet and confer process, Ms. Shiff emailed Plaintiff a detailed, six-page letter outlining the defects of the specific causes of actions contained in the Second Amended Complaint and the legal authority supporting Defendant’s arguments regarding this demurrer. A true and correct copy of Ms. Shiff’s February 1, 2024 letter is attached hereto as Exhibit A.

4. On February 2, 2024, Plaintiff finally agreed to meet and confer by telephone, stating he required ten (10) days to consider Ms. Shiff’s February 1, 2024 letter. Ms. Shiff and I agreed, therefore, to meet and confer with Plaintiff by telephone at 11:00 a.m. on February 12, 2024.

5. At 10:05 a.m. Monday, February 12, 2024, Plaintiff emailed Ms. Shiff and me acknowledging the 11:00 a.m. meet and confer telephone conference scheduled for that day. At 10:07 a.m. Ms. Shiff replied to Plaintiff by email that we would call him at 11:00 a.m., which we did. At 11:00 a.m., however, Plaintiff did not answer his phone. Not knowing when or whether Plaintiff would in fact meet and confer, we filed a declaration to obtain the automatic 30-day extension of time within which to meet and confer prior to filing a demurrer provided by California Code of Civil Procedure § 430.41(a)(2).

6. Later on Monday February 12, 2024, Plaintiff telephoned Ms. Shiff, stating he had missed the telephone call because his phone had been turned off. Ms. Shiff conferenced me in and Plaintiff, Ms. Shiff and I then fully met and conferred about the issues raised in the February 1, 2024 letter.

7. During the meet and confer telephone call, Plaintiff told Ms. Shiff and me that he understood the arguments raised in the February 1, 2023 letter but disagreed with our position. Plaintiff’s position was that he had authority to amend all three original causes of action and to add four new causes of action and four new defendants because he had requested leave to amend during the hearing on the motion for judgment on the pleadings. Plaintiff also said he believed his new causes of action were related to the original causes of action and, therefore, the Court would definitely have granted him leave, if he had in fact moved for leave, which he acknowledged he had not.

8. Plaintiff disagreed that any of his causes of action were not valid causes of action, but offered to dismiss purported newly named defendants Sebastian Schoepe and Tivity Health, Inc. if Defendant would forego a demurrer. Plaintiff sent a follow up email to this effect and Ms. Shiff replied that same day explaining the reasons Defendant could not agree to the proposal. A true and correct copy of this email exchange between Plaintiff and Ms. Shiff is attached hereto as Exhibit B.

Therefore, the evidence demonstrates the reason Plaintiff’s “phone did not ring” at 11 a.m. on February 12, 2024 (Opp. at p. 2:2), was because “his phone had been turned off.” (Alexis Decl. ¶ 6.)

Moreover, the declaration indicates the parties discussed the merits of Defendant’s proposed demurrer at length during a telephone conversation Plaintiff initiated around noon on February 12, which was preceded by a “detailed, six-page letter” outlining Defendant’s position. The demurrer was filed more than five days later, on February 26.

Thus, the Court finds that the parties have satisfied the meet and confer requirement.

Code of Civil Procedure section 1005, subdivision (b) provides, “all moving and supporting papers shall be served and filed at least 16 court days before the hearing” but if such service is made electronically, that 16-day notice period “shall be increased by two calendar days.” “All papers opposing a motion […] shall be filed with the court and a copy served on each party at least nine court days, and all reply papers at least five court days before the hearing.” The court has discretion whether to consider late-filed papers. (California Rules of Court, rule 3.1300(d).)

Plaintiff argues, “counsel filed its demurrer without providing advance notice for a hearing set for hearing on March 20, 2024.” (Opp. at p. 2:10-12.)

Defendant’s proof of service indicates the notice of hearing on demurrer and related papers were electronically served on both Plaintiff’s former counsel of record and on Plaintiff on February 23, 2024, with the hearing originally noticed for March 20, 2024. Sixteen court days after February 23 is March 18, plus two calendar days to account for electronic service is March 20, 2024. Therefore, the Court finds Defendant’s notice timely.

On March 12, 2024, Defendant filed a notice non-opposition, indicating that Plaintiff’s opposition deadline was March 7, and Defendant had not yet received Plaintiff’s opposition. The next morning, Plaintiff filed his opposition to Defendant’s demurrer.

The Court continued the hearing to April 17, 2024, and Defendant filed its reply on March 25.

In light of the confusion that may have arisen regarding the multiple pending motions and continuances, and the fact that the parties have now had ample time to file their responsive briefings by virtue of the continuance, the Court finds there has been no prejudice and exercises its discretion to consider all filed briefs.

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) In testing the sufficiency of a cause of action, a court accepts “[a]s true all material facts properly pled and matters which may be judicially noticed but disregard contentions, deductions or conclusions of fact or law. [A court also gives] the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (290 Division (EAT), LLC v. City & County of San Francisco (2022) 86 Cal.App.5th 439, 450 [cleaned up]; Hacker v. Homeward Residential, Inc. (2018) 26 Cal.App.5th 270, 280 [“in considering the merits of a demurrer, however, “the facts alleged in the pleading are deemed to be true, however improbable they may be”].)

Further, in ruling on a demurrer, a court must “liberally construe” the allegations of the complaint “with a view to substantial justice between the parties.” (See Code Civ. Proc., § 452.) “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

In summary, “[d]etermining whether the complaint is sufficient as against the demurrer on the ground that it does not state facts sufficient to constitute a cause of action, the rule is that if one consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

In addition to raising specific arguments as to each cause of action, Defendant demurs to all causes of action on the basis that the Second Amended Complaint exceeds the scope of leave granted by virtue of the Court’s December 14, 2023 ruling on Defendant’s Motion for Judgment on the Pleadings.

The Court agrees that the Second Amended Complaint was not drawn or filed in conformity with the Court’s December 14 ruling in several respects.

First, the Order indicated, “Plaintiff shall file and serve a second amended complaint in conformity with the Court’s ruling on or before January 11, 2024.” (December 14, 2023 Minute Order.) Yet, Plaintiff did not file the Second Amended Complaint until January 16, 2024.

Second, the Order indicated, “The Court grants Defendant’s motion for judgment on the pleadings with respect to the first and third causes of action and denies Defendant’s motion for judgment on the pleadings as to the second cause of action. Further, the Court grants Plaintiff leave to amend the first cause of action only.” (Ibid.)

Yet, as discussed above, Plaintiff’s Second Amended Complaint added five new defendants and expanded the causes of action from three (one of which was dismissed with prejudice) to seven without a stipulation or additional leave of Court.

Apparently conceding that the Second Amended Complaint may not have been drawn in conformity with the Court’s ruling of December 14, or other applicable law, Plaintiff requested leave to amend in opposition to Defendant’s demurrer. However, Plaintiff also argues that the Second Amended Complaint is “within the general ambit” of the leave granted by the Court at the December 14, 2023 hearing. (Opposition at pp. 1:26-4.)

Plaintiff clarifies and expands upon this argument in the reply briefing filed in connection with the motion for leave to amend:[1]

At the first demurrer [sic[2]] hearing, plaintiff expressly requested the Court to grant leave to amend the complaint. See Transcript of Hearing p. 10:

In its minute Order, the Court did not directly address plaintiff’s request at oral argument to amend the complaint considering the new evidence. The transcript shows the Court explicitly gave Plaintiff leave to amend.: See Transcript page 13.

THE COURT IS GOING TO ADOPT ITS TENTATIVE RULING ONLY WITH THE SLIGHT MODIFICATION. I WILL PROVIDE MR. GIANNINI WITH LEAVE TO AMEND. (Emphasis added)

This Court’s Order does not state plaintiff is now and forever barred from amending his complaint or adding new parties.

First, Plaintiff’s excerpts conveniently omit the dialog immediately following the quoted portion, where Defendant asks the Court if the leave to amend will be granted as to “both” claims, and the Court responds that it still needs to make that determination. Thus, Plaintiff was clearly aware at the hearing that the Court was only deciding whether to grant leave to amend as to one or both of the causes of action for which it was granting Defendant’s Motion for Judgment on the Pleadings.

Second, at no point during the hearing did the Court entertain any oral motion by Plaintiff seeking leave to amend the complaint beyond the causes of action that were subject to the Motion for Judgment on the Pleadings. California Rules of Court, rule 3.1324 requires that a motion to amend a pleading “must” include a copy of the proposed amendment or amended pleading and a separate declaration. Thus, an oral motion to amend the complaint beyond the scope of the Motion for Judgment on the Pleadings would not have been procedurally proper in any event.

Third, for the avoidance of doubt, the Minute Order issued by the Court clearly delineates the scope of leave granted – Plaintiff was only granted leave to amend the unfair business practices cause of action to add allegations of economic damages, on or before January 11, 2024.

In support of its contention that the proper remedy for exceeding the scope of leave granted is a demurrer, Defendant cites to Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1022-1023 [affirming trial court’s sustaining of demurrer on the basis that the newly-alleged cause of action exceeded the scope of leave granted].)

Although Defendant has provided legal support for its position that it can properly demur to specific causes of action in the complaint on the basis that the amendments exceed the scope of leave granted, given the complexity of the Second Amended Complaint, the Court finds striking the Second Amended Complaint to be a more appropriate remedy here.

“The court may […] at any time in its discretion, and upon terms it deems proper […] [s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436.)

Because the Second Amended Complaint was not drawn or filed in conformity with the Court’s December 14, 2023 ruling as to either timing or scope, or with Code of Civil Procedure section 472, California Rules of Court, rule 3.1324, or any other law or rule governing amendments to pleadings, the Court on its own motion and strikes the Second Amended Complaint in its entirety.

A plaintiff has the burden of showing in what manner the complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action. (See The Inland Oversight Committee v. City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v. Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.) A plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim. (See PGA West Residential Assn., Inc. v. Hulven Int'l, Inc., supra, 14 Cal.App.5th at p. 189.) Moreover, a plaintiff does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that “if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend.” (See Major Clients Agency v. Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v. Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].)

Because Plaintiff seeks amendments that exceed the scope of Defendant’s Motion For Judgment on the Pleadings to the First Amended Complaint, the appropriate procedure for evaluating Plaintiff’s proposed amendments is through Plaintiff’s concurrently filed motion for leave to amend. Thus, the Court denies Plaintiff leave to amend in connection with the Demurrer, and separately addresses Plaintiff’s motion for leave to amend in the concurrent tentative ruling.

For the reasons stated, the Court, on its own motion, strikes the Second Amended Complaint in its entirety without leave to amend.[3] Whether Plaintiff may properly file the proposed amendments shall be determined in connection with Plaintiff’s concurrent Motion for Leave.

Defendant shall provide notice of the Court’s ruling and file a proof of service regarding the same.

[1] Although the Court separately addresses Plaintiff’s motion for leave, the Court notes that the parties have conflated the demurrer arguments with the motion for leave arguments in the briefing on the two motions. Thus, the Court addresses these arguments here.

[2] The hearing concerned Defendant’s motion for judgment on the pleadings, not a demurrer.

[3] The Court denies leave to amend in connection with this order, but separately addresses Plaintiff’s motion for leave to amend in the concurrent tentative ruling.

Defendant Gold’s Gym California, LLC (“Defendant”) demurred to all new causes of action on the basis that they exceed the scope of the Court’s December 14, 2023 ruling.

After Defendant filed the demurrer, Plaintiff filed the instant motion for leave to deem the second amended complaint filed.[1]

Under Code of Civil Procedure section 473, subdivision (a)(1), “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.”

To wit, without notice to the other party the Court has wide discretion to allow either party (i) to add or strike the name of a party or (ii) to correct a mistake in the name of a party or a mistake in any other respect “in furtherance of justice” and “on any terms as may be proper.” (See Code Civ. Proc., § 473, subd. (a)(1); see also Marriage of Liss (1992) 10 Cal.App.4th 1426, 1429.) Alternatively, after notice to the other party, the Court has wide discretion to allow either party to amend pleadings “upon any terms as may be just.” (See Code Civ. Proc., § 473, subd. (a)(1). Similarly, Code of Civil Procedure section 576 states “Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.”

Judicial policy favors resolution of all disputed matters between the parties and, therefore, leave to amend is liberally granted. (Berman vs. Bromberg (1986) 56 Cal.App.4th 936, 945; Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 488-489 [this has been an established policy in California since 1901] (citing Frost v. Whitter (1901) 132 Cal. 421, 424; Thomas v. Bruza (1957) 151 Cal.App.2d 150, 155).) The Court of Appeal in Morgan v. Superior Court held “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530, citations omitted.) Moreover, “it is an abuse of discretion for the court to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048 [opposing party did not establish harm by the delay in moving to amend the complaint].)

“The court may grant leave to amend the pleadings at any stage of the action.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023) ¶ 6:636 (hereafter Weil & Brown).) Denial of a motion to amend is rarely justified if the motion is timely made and granting the motion will not prejudice the opposing party. (Id. at ¶ 6:639, citations omitted.) However, if the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the judge has discretion to deny leave to amend. (Id. at ¶ 6:655, citations omitted. Absent prejudice, any claimed delay alone is not grounds for denial. “If the delay in seeking the amendment has not misled or prejudiced the other side, the liberal policy of allowing amendments prevails. Indeed, it is an abuse of discretion to deny leave in such a case even if sought as late as the time of trial. (Id. at ¶ 6:653 (citing Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565).) “Prejudice exists where the amendment would result in a delay of trial, along with loss of critical evidence, added costs of preparation, increased burden of discovery, etc. . . . But the fact that the amendment involves a change in legal theory which would make admissible evidence damaging to the opposing party is not the kind of prejudice the court will consider.” (Weil & Brown, supra, at ¶ 6:656, citations omitted.)

“Even if some prejudice is shown, the judge may still permit the amendment but impose conditions, as the Court is authorized to grant leave ‘on such terms as may be proper.’” (Weil & Brown, supra, at ¶ 6:663, citation omitted.) For example, the court may cause the party seeking the amendment to pay the costs and fees incurred in preparing for trial. (Id. at ¶ 6:664 (citing Fuller v. Vista Del Arroyo Hotel, 42 Cal.App.2d 400, 404).)

Pursuant to California Rules of Court, rule 3.1324(a), a motion to amend a pleading before trial must:

“(1) Include a copy of the proposed amendment or amended pleadings, which must be serially numbered to differentiate it from previous pleadings or amendments;

(2) state 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

(3) State 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.”

In addition, under Rule 3.1324(b), a motion to amend a pleading before trial must be accompanied by a separate declaration that specifies the following:

Because Plaintiff essentially filed the motion for leave to amend in opposition to Defendant’s demurrer to the Second Amended Complaint, the parties have largely reiterated their demurrer arguments in connection with the motion for leave, instead of addressing whether leave to amend is or is not proper. Courts will generally not consider the merits of the proposed amendment in determining whether to grant leave to amend. (See Kittredge Sports Co. v. Superior Court, supra, 213 Cal.App.3d at p. 1048; see also Weil & Brown, supra, at ¶ 6:656, citations omitted [“But the fact that the amendment involves a change in legal theory which would make admissible evidence damaging to the opposing party is not the kind of prejudice the court will consider”].)

Notwithstanding the state of the parties’ briefing, the Court analyzes whether Plaintiff has satisfied the procedural and substantive requirements for requesting leave to amend.

Although Plaintiff has filed a copy of the second amended complaint, Plaintiff does not state what allegations are proposed to be deleted from or added to the previous pleading “by page, paragraph, and line number.”[3]

Moreover, the accompanying declaration does not state the effect of the amendment, state why all proposed amendments are necessary and proper, or explain when all the facts giving rise to the amended allegations were discovered or why the request for amendment was not made earlier.

1. I have recently obtained new evidence and confirmed the newly named defendant RSG GROUP USA Inc. has not filed an appearance in this lawsuit, it is and unlawfully transacting intrastate and interstate business in California, and it is the employer of newly named defendant JEFF SUENDER, and all the employees at the Venice gym. It is thus categorically barred from defending itself in this action because it does not have a certificate of good standing issued by the Secretary of State.

2. Enclosed is a redacted copy of a Gold’s Gym employee at the Venice facility. This redacted W2 copy is necessary to maintain the confidentiality of the Venice facility employee. These individual fears retaliation if his or her name is disclosed.

(Giannini Decl. ¶¶ 1-2.) But Plaintiff does not indicate when (other than “recently”) Defendant obtained the unnamed employee’s W2, indicating that RSG Group USA Inc. is the employer of the employees at the Venice gym.

3. Defense counsel Mr. Alesio filed in this proceeding excerpts of the Chapter 11 Order. I became suspicious that he only filed excerpts. Then, defense counsel Ms. Shiff stated at hearing something about the Chapter 11 filing which I immediately knew was absurd based on prior experience, not unlike Donald Trump saying people might be able to ingest some form of bleach to combat COVID19. Beginning on or about December 29, 2023 I downloaded official PACER documents from the Chapter 11. I spent about 40 hours reviewing them. I thus learned what I had not known previously.

(Giannini Decl. ¶ 3.) But Plaintiff does not specify what new information he discovered upon reviewing the PACER documents from the Chapter 11 case in late December 2023, or how this new information supports the proposed amendments.

Plaintiff has also not provided any information about new facts discovered that support adding defendants Gold’s Gym Club California, LLC; Sebastian Schoepe; or Tivity Health Inc. (dba Silver Sneakers).

And although the body of the motion indicates that Plaintiff’s prior counsel inadvertently omitted certain causes of action, which Plaintiff seeks to correct by adding them now, this information does not appear in Plaintiff’s supporting declaration.

Therefore, the Court denies without prejudice, Plaintiff’s motion for failure to comply with the procedural requirements of Rule 3.1324(b). Because the denial is made on procedural grounds and without prejudice, Plaintiff may file a motion (or the parties may stipulate) for leave to file a Second Amended Complaint. (See footnote 1.) Any such motion must either include a redline or otherwise state all changes made between the First Amended Complaint and the proposed Second Amended Complaint “by page, paragraph, and line number,” and the proposed changes must supported by a separate declaration, as required by Rule 3.1324.

The Court orders Plaintiff to provide notice of the Court’s ruling and file a proof of service of such.

[1] To clarify, the Second Amended Complaint was filed, but because it was not filed in conformity with the timing requirements and scope outlined in the Court’s December 14, 2023 ruling, the Court has now stricken the Second Amended Complaint filed on January 16, 2024 (see concurrent tentative ruling re Demurrer to Second Amended Complaint).

[2] The Court does not consider Plaintiff’s reply evidence, as Defendant has not had a fair opportunity to respond. (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316 [“due process requires a party be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail”]; see also Wall Street Network Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171.)

[3] In Reply, Plaintiff has submitted a redlined version of the Second Amended Complaint that was filed, with additional deletions made to the version that was filed. Not only was this improperly submitted as Reply evidence (see footnote 1), but it also does not satisfy the requirement of demonstrating changes made between the first amended complaint and the proposed second amended complaint.

DEPARTMENT	207
HEARING DATE	April 17, 2024
CASE NUMBER	23SMCV03707
MOTIONS	Demurrer to Second Amended Complaint
MOVING PARTY	Defendant Gold’s Gym California, LLC
OPPOSING PARTY	Plaintiff Joseph Robert Giannini

DEPARTMENT	207
HEARING DATE	April 17, 2024
CASE NUMBER	23SMCV03707
MOTION	Motion for Leave to Amend Complaint
MOVING PARTY	Plaintiff Joseph Robert Giannini
OPPOSING PARTY	Defendant Gold’s Gym California, LLC