Judge: Peter A. Hernandez, Case: 21PSCV00806, Date: 2022-08-22 Tentative Ruling

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Case Number: 21PSCV00806    Hearing Date: August 22, 2022    Dept: O

Plaintiff Weng Bo’s unopposed Motion for Leave to File Second Amended Complaint is GRANTED. The proposed SAC is deemed filed and served as to all parties who have appeared in this case as of the hearing date.

Background   

Plaintiff Weng Bo (“Plaintiff”) alleges as follows:

On or about June 2, 2016, Xioawei Hong (“William”) executed a Promissory Note on behalf of Fullerton Cabinet Inc. (“FCI”) to repay Plaintiff’s $1,000,000.00 loan, with 0.85% monthly interest. Between June 2, 2016 and January 29, 2021, William only repaid a portion of the loan. On or about January 29, 2021, William made and executed a “Guaranty for Stock Ownership,” wherein Plaintiff would provide funds to William to purchase inventory for KB Depot Inc. (“KB Depot”) in return for 51% shares of KB Depot until repayment of the debt was confirmed by Plaintiff. Plaintiff provided these funds but was not repaid or given the 51% shares.

On March 9, 2022, Plaintiff filed a First Amended Complaint, asserting causes of action against William, KB Depot, K&B Depot Inc., FCI, Fullerton Cabinet & Stone Inc, HD Design & Construction, Corp., KB Depot Home Inc., KB Depot Cabinet & Stone Inc, KB Cabinet & Countertop Inc., KB Cabinetry Wholesaler, Haiyan Zhuang, Shu Hong, Lang Zhang (“L. Zhang”), Dong Zhang, Premium Quartz Inc., GZ Transport Inc. (“GZ Transport”), Yong’s Trucking Inc. (“Yong’s Trucking”), KB Home Construction Inc., KB Depot Outlet Inc., New Sun International, LLC and Does 1-100 for:

1.                  Declaratory Relief

2.                  Breach of Contract

3.                  False Promise

4.                  Money Had and Received

5.                  Alter Ego

A Case Management Conference is set for September 8, 2022.

Legal Standard

“The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading…” (Code Civ. Proc., § 473, subd. (a)(1); and see § 576 [“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”].)

“[T]he trial court has wide discretion in allowing the amendment of any pleading.” (Bedolla v. Logan & Frazer (1975) 52 Cal.App.3d 118, 135.) “[I]t is irrelevant that new legal theories are introduced as long as the proposed amendments relate to the same general set of facts.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048 [quotation marks and citation omitted].) “[E]ven 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.” (Id. [quotation marks and citation omitted].) With that said, “the failure of a proposed amendment to state facts sufficient to constitute a cause of action or defense may support an order denying a motion to amend.” (California Casualty Gen. Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 280,

disapproved of on other grounds in Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390)

Courts must apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial, when no prejudice is shown to the adverse party. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) However, “even if a good amendment is proposed in proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial    . . . denial may rest upon the element of lack of diligence in offering the amendment after knowledge of the facts, or the effect of the delay on the adverse party.” (Roemer v. Retail Credit Co. (1975) 44 Cal.App.3d 926, 940.)

Also, “[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.” (California Rules of Court (“CRC”) Rule 3.1324(a).) Additionally, “[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.” (CRC Rule 3.1324, subd. (b).)

Discussion

Plaintiff moves the court for leave to file his proposed Second Amended Complaint.

Plaintiff represents that “[t]he proposed amendments fall into five categories: (1) non-substantive clerical corrections; (2) addition of facts to bolster existing causes of action challenged by demurrers filed by certain defendants; (3) addition of new legal claims to clarify a previously existing cause of action; (4) the addition of new causes of action based on facts already pleaded; and (5) additions to Plaintiff’s prayer based on the newly proposed causes of action.” (Motion, 2:14-18.)

The motion reflects adequate compliance with CRC Rule 3.1324. Plaintiff has attached a copy of a redline version of the FAC, showing all proposed amendments. (Putterman Decl., ¶ 8, Exh. 2.) The proposed amendments include, inter alia, deleted causes of action for False Promise and Alter Ego and added causes of action for Fraud, Conversion, Breach of Fiduciary Duties, Accounting, Involuntary Dissolution and Preliminary and Permanent Injunction. Plaintiff’s counsel Matt Putterman explains that his firm substituted into the case on June 7, 2022 and that he determined that, in lieu of opposing pending demurrers, the best course of action would be to file a SAC instead. (Putterman Decl., ¶¶ 3-5.) The court further notes that the motion is unopposed.

The motion is granted. The proposed SAC is deemed filed and served as to all parties who have appeared in this case as of the hearing date.