Judge Randolph M. Hammock, Case Number: 22STCV07432, Date: 2024-05-06 Tentative Ruling

Plaintiff Vitoli Builders, Inc., is a Los Angeles based company providing landscaping and related services to high-net-worth customers. Through the course of business, Plaintiff alleges it maintained “customized invoices” and “customized contracts” as an advantage over its competitors. Plaintiff alleges two of its former employees, Defendants Jonathan Goldhammer and Itay Zeltser—along with Goldhammer’s wife, Moran Vaknin—stole Plaintiff’s trade secrets to use in a competing business, Defendant Sequoia Pools and Masonry, Inc.

Defendant Goldhammer has filed a cross-complaint against Vitoli Builders and its sole shareholder, Reuven Nathaniel Litman. Cross-complainant alleges that he is a 50% owner of Vitoli Builders, Inc., and that Cross-Defendants have committed breach contract, and breach of fiduciary duties, among other things, by terminating him from the company.

A stand-alone Supplemental Complaint must be filed and served to all current parties within 10 days. Any new parties must be served in a timely manner as provided by law.

Plaintiff moves for leave to amend to file a Second Amended Complaint. Plaintiff presents the following: During the course of this litigation, Defendants’ counsel, Mr. Shalem Shem-Tov, was in possession of Defendant Goldhammer’s cell-phone. (Mateescu Decl. ¶ 2.) On August 14, 2023, Mr. Shem-Tov informed Plaintiff’s counsel by letter that the cell phone had been stolen from his office nearly two months earlier around June 16, 2023. (Id., Exh. A.) Plaintiff contends counsel has taken little to no efforts to investigate the purported theft or recover the phone, thereby depriving Plaintiff of key evidence in this case. (Id. ¶ 3.)

Therefore, Plaintiff seeks leave to file a Second Amended Complaint adding two causes of action for (1) negligent spoliation and (2) breach of bailment against attorney Shalem Shem-Tov and his law firm based on their alleged failure to safeguard the phone. (See Mateescu Decl., Exh. B.)

Technically speaking, this is not a valid motion to amend the complaint. It is actually a motion for leave to file a supplemental complaint, per CCP § 464, since the new proposed causes of action arose after the filing of the original complaint.

“A ‘supplemental’ pleading is used to allege facts occurring after the original pleading was filed. [Citation.] In contrast, the additional allegations in an ‘amended’ pleading address matters that had occurred before the original pleading was filed.” (Foster v. Sexton (2021) 61 Cal.App.5th 998, 1032.) Code of Civil Procedure section 464, subdivision (a) provides: “The plaintiff and defendant, respectively, may be allowed, on motion, to make a supplemental complaint or answer, alleging facts material to the case occurring after the former complaint or answer.” As with amended pleadings, a motion to file supplemental pleadings is addressed to the sound discretion of the court and the same policy favoring liberality in amending pleadings applies. (Louie Queriolo Trucking, Inc. v. Sup.Ct. (1967) 252 Cal.App.2d 194, 197.)

Defendants oppose the motion. They first argue they will be prejudiced by the filing of an amended complaint because it will “create a conflict due to which Defendants will be forced to seek new counsel and expend substantial sums in the form of attorney fees to new counsel for his/her review of a substantial case file.” (Opp. 1: 27.)

Second, Defendants argue they will suffer prejudice because they will be barred from bringing a dispositive motion. On March 12, 2024, the parties filed a Stipulation to continue the trial date and all related deadlines from May 20, 2024, to November 17, 2025. (See 03/12/24 Stipulation.) In the Stipulation, the parties agreed “that the deadline for filing dispositive motions shall not be continued.” (See Stipulation, p. 2, ¶ 2.)

This is a fair argument, because at the time of the stipulation, the motion seeking leave to amend had not been filed. The court doubts Defendants would have willingly waived their right to bring a dispositive motion had they known new claims would be asserted against their counsel just a month later.

However, because the attorney defendants were not “parties” to that stipulation—as they had not been named Defendants at the time—they did not agree to the dispositive motion deadline. (Am. Alternative Ins. Corp. v. Superior Ct. (2006) 135 Cal. App. 4th 1239, 1245 [when interpreting a written instrument, “[t]he mutual intention of the contracting parties at the time the contract was formed governs”].) In other words, the deadline for filing dispositive motions by the newly added attorney-Defendants can and should proceed per code.

Considering this, the filing of the proposed supplemental complaint will not unfairly prejudice Defendants. The parties are currently still in the process of discovery. Trial was recently continued to late 2025, giving both sides ample time to conduct further discovery, prepare dispositive motions, and prepare for trial on the new claims. Indeed, absent prejudice to the adverse party, the court may permit 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 [internal quotes omitted].)

Finally, the court makes no conclusion on the merits as to the new claims. Rather, the “better course of action” is to permit the supplemental complaint, “and then let the parties test its legal sufficiency in other appropriate proceedings.” (Atkinson v. Elk Corp. (2003) 109 Cal. App. 4th 739, 760.)

Therefore, leave to amend is appropriate. This conclusion is consistent with the “policy of great liberality in allowing amendments at any stage of the proceeding so as to dispose of cases upon their substantial merits.” (Bd. of Trustees v. Superior Ct. (2007) 149 Cal. App. 4th 1154, 1163.)

A stand-alone Supplemental Complaint must be filed and served to all current parties within 10 days. Any new parties must be served in a timely manner as provided by law.

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.