Judge Olivia Rosales, Case 21NWCV00671 2022-10-13 Tentative Ruling

Judge: Olivia Rosales, Case: 21NWCV00671, Date: 2022-10-13 Tentative Ruling

Case Number: 21NWCV00671 Hearing Date: October 13, 2022 Dept: SEC

ACCENTIAN, INC. v. HIGH PRECISION GAS, LLC

CASE NO.: 21NWCV00671

HEARING: 10/13/22

TENTATIVE ORDER

I. Plaintiff’s Motion for Leave to File a Third Amended Complaint is GRANTED.

II. Defendants HIGH PRECISION GAS, LLC; SCOTT TAKEO NAGAMI; and DAVID LEE’s Demurrer to Plaintiff’s Second Amended Complaint is MOOT.

III. Defendants HIGH PRECISION GAS, LLC; SCOTT TAKEO NAGAMI; and DAVID LEE’s Motion to Strike Portions of Plaintiff’s Second Amended Complaint is MOOT.

Plaintiff to give Notice

This action was filed on October 8, 2021. A First Amended Complaint was filed on December 3, 2021. A Second Amended Complaint was filed per Stipulation and Order on April 26, 2022.

There is a Demurrer and Motion to Strike Portions of the Second Amended Complaint set to be heard concurrently with the instant Motion.

Plaintiff seeks leave to file a Third Amended Complaint (“TAC”) for the following reasons: (1) add a cause of action for breach of express warranty; (2) clarify the breach of contract claim, specifically whether the agreement was oral, written, or implied in fact, and include the invoices and certificates of lot analysis to substantiate the oral agreement; (3) add substantial facts and several exhibits to substantiate the fraudulent statements to meet the heightened pleading requirements; (4) amend the business and professions code 17200 and 17500 claims to also be based on Cal. Civ. Code §§1792.1 and 1792.2; and (5) add a grounds for attorneys’ fees based on CCP §1021.5. Plaintiff contends that the proposed amendments are in response to Defendants’ Demurrer and Motion to Strike Portions of the Second Amended Complaint.

In Opposition, Defendants request that the Court rule on the Demurrer and Motion to Strike directed towards the operative Second Amended Complaint. Defendants maintain that Plaintiff’s proposed TAC does not resolve the deficiencies highlighted in the pending Demurrer and Motion to Strike, and that Plaintiff’s Motion is an improper attempt to avoid an adverse ruling.

California recognizes “a general rule of…liberal allowance of amendments…” (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 939.) It has also long been recognized that “even if the proposed legal theory is a novel one, ‘the preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.) In light of great liberality employed when ruling on a motion for leave to amend, the court will not normally consider the validity of the proposed amended pleading since grounds for demurrer or motion to strike are premature. Thus, absent prejudice to the opposing party, courts are bound to apply a policy of great liberality in permitting amendments to the complaint “at any stage of the proceedings, up to and including trial.” (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.)

The Court finds that the interests of justice would best be served by allowing Plaintiff the opportunity to adjudicate its claims on the merits. In light of the liberality associated with granting motions for leave to amend, the Court finds that Plaintiff should be afforded the opportunity to make the proposed amendments. Defendant(s) maintain their right to demur, move to strike, or move for summary judgment to the new operative complaint.

The Motion is GRANTED.

The Proposed Third Amended Complaint attached as Exhibit A to the Declaration of Weixuan Cai is not deemed filed as of the date of this hearing. Plaintiff is ORDERED to FILE the Third Amended Complaint by no later than 5 days from the date of the Court’s issuance of this Order.

The Demurrer and Motion to Strike, as directed towards the Second Amended Complaint are MOOT.