Judge: Robert B. Broadbelt, Case: 19STCV44140, Date: 2023-01-17 Tentative Ruling

Tentative rulings are sometimes, but not always, posted. The purpose of posting a tentative ruling is to to help focus the argument. The posting of a tentative ruling is not an invitation for the filing of additional papers shortly before the hearing.

Case Number: 19STCV44140    Hearing Date: January 17, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Cross-Complainant Simple Bar, Inc.

RESPONDING PARTIES:    Plaintiff David Dallakian (joined by plaintiff Haroutioun Aivazian on January 3, 2023)

Motion for Leave to File Second Amended Cross-Complaint

The court considered the moving, limited opposition, and reply papers filed in connection with this motion.

EVIDENTIARY OBJECTIONS

The court sustains plaintiffs David Dallakian and Haroutioun Aivazian’s objections to the supplemental declaration of Guillaume L. D’Amico, filed on January 9, 2023, as new evidence improperly submitted in reply.  (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537 [“new evidence is not permitted with reply papers”].)

DISCUSSION

Cross-Complainant Simple Bar, Inc. (“Simple Bar”) moves the court for an order granting it leave to file its Second Amended Cross-Complaint, so that Simple Bar may add plaintiff David Dallakian (“Dallakian”) as a cross-defendant and plead facts in support of its causes of action for contribution, third party tort of another, and implied indemnity against Dallakian and plaintiff Haroutioun Aivazian.  (D’Amico Decl., Ex. D [proposed Second Amended Cross-Complaint]; Mot., p. 4:22-27.)

The court finds that it is in furtherance of justice to permit Simple Bar to amend its cross-complaint.  (Code Civ. Proc., § 473, subd. (a).)  The court notes that Dallakian contends that Simple Bar’s proposed amendment (i.e., the identification of Dallakian as a cross-defendant) was unreasonably delayed, will prejudice him, and is futile as barred under the statute of limitations. 

First, although Simple Bar has indicated that it learned of certain facts supporting this amendment during Dallakian’s January 28, 2021 deposition, it appears that Simple Bar learned of additional facts during the August 23, 2022 deposition of Garrick Powell.  (D’Amico Decl., ¶¶ 4-5.)  Second, the court finds that Dallakian will not be unduly prejudiced by this amendment, but Simple Bar would be substantially prejudiced if it were not able to bring all possibly valid claims on its behalf in this action.  Finally, while the court notes that Dallakian contends that the proposed causes of action against him are barred by the applicable statute of limitations, Dallakian may test the validity of Simple Bar’s Second Amended Cross-Complaint 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.)

Because the court finds that it is “in furtherance of justice” to permit Simple Bar to amend its cross-complaint, the court grants Simple Bar’s motion.  (Code Civ. Proc., § 473, subd. (a).) 

ORDER

The court grants cross-complainant Simple Bar, Inc.’s motion for leave to file Second Amended Cross-Complaint.

The court orders cross-complainant Simple Bar, Inc. to file its Second Amended Cross-Complaint, as attached to the November 14, 2022 declaration of Guillaume L. D’Amico as Exhibit D, no later than 5 days from the date of this order.

The court orders cross-complainant Simple Bar, Inc. to give notice of this ruling.

IT IS SO ORDERED.

DATED:  January 17, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court