Judge: Michael P. Linfield, Case: 21STCV45988, Date: 2023-04-27 Tentative Ruling
Case Number: 21STCV45988 Hearing Date: April 27, 2023 Dept: 34
: Motion for Leave to Amend Second Amended Complaint
Moving
Party: Plaintiff Qianqian Dong
Resp.
Party: None
Plaintiff’s Motion for Leave to File Second
Amended Complaint is DENIED.
BACKGROUND:
On December
16, 2021, Plaintiff Qianqian Dong her Verified Complaint against Defendants
Michael Mattox; Access the USA, LLC; Idea EB5 Bonds Fund II, LP; Idea EB5 Bonds
Fund, LP; Access US Oil & Gas, Inc.; World Trade Center San Francisco;
Sapient Law Group, P.C.; Jason Park; Wei Fan Chen; William Yen; Shengan Hu; and
The Awesome Group. The underlying allegations concern a $500,000.00 investment
by Plaintiff’s parents in a plan that was intended to (but did not succeed in)
obtaining an EB5 visa for Plaintiff.
On March 25, 2022,
the Court granted Defendants Sapient Law Group, P.C., Jason Park, Wei Fan Chen,
and William Yen’s motion to compel arbitration.
On July 15, 2022, the
Court granted Defendants Michael Mattox, Access the USA, LLC, Idea EB5 Bonds
Fund, LP, Idea EB5 Bonds Fund II, LP, Access US Oil & Gas, Inc., and World
Trade Center San Francisco’s motion to quash.
On September
20, 2022, by Court Orders, Plaintiff corrected the names of Defendant Awesome
Group to America Regional Center LLC, American LA Awesome LLC, and Awesome
American LA LLC.
On November
3, 2022, the Court granted Defendants The Awesome Group and Shengan Hu’s motion
to quash.
On February
14, 2023, Plaintiff filed her Motion for Leave to File Second Amended Complaint
(“Motion”).
No opposition
or other response has been filed to the Motion.
ANALYSIS:
I.
Legal Standard
The court may, in furtherance of justice and
on any proper terms, allow a party to amend any pleading. (Code Civ. Proc., §
473, subd. (a)(1); Branick v. Downey
Savings & Loan Association (2006) 39 Cal.4th 235, 242.)
The court may also, in its discretion and
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. (Code
Civ. Proc., § 473, subd. (a); Branick,
supra, 39 Cal.4th at 242.)
“This discretion should be exercised
liberally in favor of amendments, for judicial policy favors resolution of all
disputed matters in the same lawsuit.” (Kittredge
Sports Co. v. Super. Ct. (1989) 213 Cal.App.3d 1045, 1047.) Leave to amend
is thus liberally granted, provided there is no statute of limitations concern.
(Kolani v. Gluska (1998) 64
Cal.App.4th 402, 411.) The Court may deny the plaintiff’s leave to amend if there
is prejudice to the opposing party, such as delay in trial, loss of critical
evidence, or added costs of preparation. (Id.)
Under California Rules of Court, rule 3.1324,
a motion to amend a pleading before trial must (1) include a copy of the proposed
amendment or amended pleading, 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. (Cal. Rules of Court, rule
3.1324(a).) A separate supporting
declaration specifying (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 reason why the request for amendment
was not made earlier must accompany the motion. (Id., rule 3.1324(b).)
II.
Discussion
A. The
Parties’ Arguments
Plaintiff argues: (1) that
the forum selection clause is unreasonable because there was fraud in the
inducement of the contract and fraud in the execution of the contract; (2) that
California is the only suitable forum; (3) personal jurisdiction exists over
this third set of Defendants; and (4) that leave to amend is proper because
this Motion was timely filed and Defendants will not be prejudiced if the
Motion is granted. (Motion, pp. 5:7, 5:18–19, 7:3–4, 9:17–19, 10:23–25, 12:6,
13:1–2.)
No opposition or other
response has been filed.
B. Discussion
Prior to filing this
Motion, each of the three sets of Defendants in this action successfully moved
this action to different venues. A first set of Defendants moved to compel
arbitration, which the Court granted on March 25, 2022. A second set of
Defendants moved to quash the summons, which the Court granted on April 8, 2022
and July 27, 2022. A third set of Defendants also moved to quash the summons,
which the Court granted on November 3, 2022. Thus, there are no Defendants left
to litigate the merits of the matter before the Court. (At this time, Plaintiff
appears to be continuing this case in arbitration with the first set of
Defendants.)
Now, more than five months
after the Court quashed the summons on the third set of Defendants, Plaintiff
is asking for another bite at the apple. Among other things, Plaintiff seeks to
add information about the third set of Defendants — Shengan Hu (and his
aliases) and The Awesome Group (and its aliases) — so that Plaintiff can
overcome the issues that led to the Court quashing the summons on these
Defendants on November 3, 2022. (Motion, p. 4:9–25.)
Yet
simply amending the pleadings does not change the reasons why the Court quashed
the summons on the third set of Defendants.
On
the issue of forum, the Court previously wrote:
“California is not necessarily the only
suitable forum for this matter. Plaintiff is a Chinese national, Defendant TAG
either appears to be a Chinese organization or is entirely owned by a Chinese
organization, and the contract at issue was signed in China. (Complaint, Ex. B,
Part 1; Motion to Quash, pp. 2:18–23, 3:3–10; Motion to Quash, Ex. 4, pp. 1,
5.) While California may be a suitable forum, that in and of itself does not
exclude the Zhengzhou People’s Court as a suitable forum.”
(Minute Order dated November 3, 2022, pp.
5–6.)
Then, after a analysis
of the contract and other evidence presented, the Court made multiple findings,
including “that Plaintiff is bound by the forum selection clause in the
contract signed by her mother and Defendant Hu.” (Id. at p. 9.)
Finally, after
considering whether there would be any reason for this Court to set aside the
forum selection clause, the Court did not find any reasons why enforcing the
forum selection clause would be unreasonable. (Id. at p. 10–12.)
The items that
Plaintiff now wishes to add to the pleading — for example, adding Defendants’
aliases, adding allegations on how Defendants committed the causes of action,
and amending and adding exhibits — do not change the existence of the forum
selection clause or to explain why the Zhengzhou People’s Court (i.e., the
selected forum) would not be a proper venue. Moreover, even if the evidence
attached to the Motion did support a finding that there was fraud in the
inducement or in the execution of the contract with a forum selection clause —
which, to be clear, the Court does not find after considering this evidence —
that would still not be sufficient to explain why the selected forum would not
be a proper venue.
The Court notes that these
amended pleadings would not affect the Court’s analysis of personal
jurisdiction for the simple reason that the Court pointedly did not reach the
question of personal jurisdiction when it last considered this issue. (Id. at
Minute Order dated November 3, 2022, p. 12 (“But the Court has not reached that
question [of whether this Court should allow limited discovery on the issue of
whether the Court has personal jurisdiction over Defendant TAG]. The only
personal jurisdiction issue at hand is whether the Zhengzhou People’s Court
would have personal jurisdiction over the parties in this matter. The Court
does not reach that question because that is a matter for the Zhengzhou
People’s Court to determine.”)
Given
the Court’s prior ruling on this matter, the Court that there would be a high
degree of prejudice to these Defendants that would ensure if the Court granted
this Motion. Granting this Motion would completely change the venue. That would
affect the where the Parties would litigate, which in this case could add a
significant cost to these Defendants. In addition, this change in venue could
mean that significantly different rules would apply than the rules that these
Defendants had contracted for. Moreover, the Court wonders whether these
Defendants are actually aware of this Motion — after all, there has been
no opposition, and the Court already quashed the summons on these Defendants.
(The Court does note the proof of service listed on the last two pages of the
Motion, showing service of Defendants’ counsel.)
It does not accord
with justice and the purposes of Code of Civil Procedure section 473,
subdivision (a) to allow an amendment more than five months after the Court
already considered the evidence presented, thoroughly discussed these issues,
and ended this litigation in this forum for certain Defendants. Plaintiffs need
to sue elsewhere if they wish to continue pursuing their claims against these
Defendants on this cause of action.
The prejudice to
Defendants of granting this Motion would be high, while the prejudice to
Plaintiffs of denying this Motion would be low. After considering the
circumstances at hand, the Court declines to exercise its discretion to allow
Plaintiff to amend her pleadings in the manner requested.
III.
Conclusion
Plaintiff’s Motion for Leave to File Second
Amended Complaint is DENIED.