Judge: Richard S. Whitney, Case: 37-2021-00050961-CU-FR-CTL, Date: 2024-03-05 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - February 07, 2024

02/09/2024  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  Fraud Motion Hearing (Civil) 37-2021-00050961-CU-FR-CTL ONCOGENERIX USA INC VS ALPHA CAPITAL LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: CROSS-COMPLAINANT ALPHA CAPITAL LLC'S MOTION FOR LEAVE TO FILE SECOND AMENDED CROSS-COMPLAINT AND FIRST AMENDED ANSWER is GRANTED.

Defendant and Cross-Plaintiff Alpha Capital, LLC ('Alpha Capital') seeks to amend its cross-complaint and answer. Plaintiffs/Cross-Defendants ONCOGENERIX USA, INC., IGOR IVANOV and Cross-Defendant/Cross-Complainant ONCOGENERIX INVEST, INC. ('Cross-Defendants') oppose the motion. The policy permitting amendment is strong, but amendment may be rejected where there is a showing of prejudice or unfair surprise. (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 296–297.) '[I]t is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.' (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.) 'Leave to amend is properly denied when the facts are undisputed and as a substantive matter no liability exists under the plaintiff's new theory.' (Huff v. Wilkins (2006) 138 Cal.App.4th 732, 746.) The Court finds Cross-Defendants have not sufficiently shown Alpha Capital is solely responsible for a prejudicial delay. Further, Cross-Defendants have not sufficiently shown the claims fail as a matter of law based on the undisputed facts, especially since discovery remains to be completed. The motion is granted. Alpha Capital's requests for judicial notice are granted to the extent permitted. (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.) Calendar No.: Event ID:  TENTATIVE RULINGS

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