Judge: Michael P. Linfield, Case: 22STCV01001, Date: 2023-01-06 Tentative Ruling

Case Number: 22STCV01001    Hearing Date: January 6, 2023    Dept: 34

SUBJECT:         Motion for Leave to File Second Amended Complaint

Moving Party:  Xi Wang, American Dream Investment Associates, W & A 22931 LLC, W & A (2256) LLC, W + A 2581 LLC, Stark Estates, LLC, and Bixia Liu

Resp. Party:    None

Plaintiffs/Cross-Defendants’ Motion for Leave to File Second Amended Complaint is GRANTED.

BACKGROUND:

On January 10, 2022, Plaintiffs Xi Wang, American Dream Investment Associates, W & A 22931 LLC, W & A (2256) LLC, W + A 2581 LLC, Stark Estates, LLC, and Bixia Liu filed their Complaint against Defendants Avraham Cohen, G.B.U. Construction, Inc. American Dream Investment Associates, W & A 22931 LLC, W & A (8404), LLC, W & A (2256), LLC, and W + A 2581 LLC. At its core, this matter involves allegations by Plaintiff Wang that Defendant Cohen has committed a variety of torts related to property that the Parties jointly own.

On January 11, 2022, Plaintiffs filed Lis Pendens on the following properties:

(1)       2256 Nichols Canyon Road, Los Angeles, CA 90046;

(2)       8406 Woodley Place, North Hills, CA 91343;

(3)       8411 Woodley Place, North Hills, CA 91343;

(4)       2581 Kanan Road, Agoura Hills, CA 91301; and

(5)       22931 Burbank Boulevard, Woodland Hills, CA 91367.

On April 25, 2022, Plaintiffs filed their First Amended Complaint against Defendants.

On May 26, 2022, Defendants/Cross-Complainants Avraham Cohen, G.B.U. Construction, Inc. and American Dream Investment Associates, Inc. filed: (1) their Answer to the Complaint; and (2) their Cross-Complaint against Plaintiffs/Cross-Defendants Xi Wang and Stark Estates, LLC.

On May 31, 2022, Defendants/Cross-Complainants filed their Answer to the First Amended Complaint.

On June 17, 2022, Plaintiffs/Cross-Defendants filed their Answer to the Cross-Complaint.

On December 19, 2022, Plaintiffs/Cross-Defendants filed their Motion for Leave to File Second Amended Complaint. Plaintiffs/Cross-Defendants concurrently filed their Proposed Order.

No opposition has been filed, and the time for an opposition to be filed has elapsed.

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.      Rules of Court

Plaintiffs/Cross-Defendants complied with California Rules of Court, rule 3.1324.

First, Plaintiffs/Cross-Defendants submitted a copy of the proposed amended pleading, which is serially numbered as Exhibit 1 to the Motion.

Second, Exhibit 1 is a red-lined version of the Second Amended Complaint, which shows exactly all the items that would be deleted and added, as well as exactly where those deletions and additions are located.

Finally, Plaintiffs/Cross-Defendants submitted a separate supporting declaration from Robert C. Hayden, Esq. that describes the effect of the amendment (to amend the pleading with a cause of action for theft pursuant to Penal Code § 496), why the amendment is necessary and proper (because the California Supreme Court ruled on July 21, 2022 that treble damages and attorneys’ fees can be awarded pursuant to this statute in cases involving the fraudulent diversion of a partnership’s cash distributions), when the facts giving rise to the amendments were discovered (presumably within the last five months since the issuance of the decision), and the reason why the request for amendment was not made earlier (because settlement discussion only recently ended without settlement.) (Motion, Decl. Hayden, ¶¶ 4–5.)

B.      Prejudice to Defendants/Cross-Complainants

Defendants/Cross-Complainants have not opposed the Motion. While the Court finds that there would potentially be prejudice to Defendants/Cross-Complainants by allowing Plaintiffs/Cross-Defendants to amend their pleading with this additional cause of action, any such prejudice to Defendants/Cross-Complainants would be minimal.  Nonetheless, the Court reminds the parties that trial is set in this matter for June 19, 2023.

The Court finds that there exists good cause for allowing the amendment. The Court GRANTS Plaintiffs/Cross-Defendants’ Motion for Leave to File Second Amended Complaint.

III.     Conclusion

Plaintiffs/Cross-Defendants’ Motion for Leave to File Second Amended Complaint is GRANTED.