Judge: Robert B. Broadbelt, Case: 22STCV15735, Date: 2022-10-21 Tentative Ruling

Case Number: 22STCV15735    Hearing Date: October 21, 2022    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Plaintiff Radenko Milakovic

RESPONDING PARTIES:    Defendants David Glasser, individually and as trustee of the Glasser Family Trust, Michele Tritt-Glasser, and 101 Studios, LLC

(1)   Motion for Leave to File Second Amended Complaint

MOVING PARTIES:             Defendants David Glasser, individually and as trustee of the Glasser Family Trust, Michele Tritt-Glasser, and 101 Studios, LLC

RESPONDING PARTY:       Plaintiff Radenko Milakovic

(2)   Demurrer to First Amended Complaint

(3)   Motion to Strike Portions of First Amended Complaint

The court considered the moving, opposition, and reply papers filed in connection with the motion for leave to file Second Amended Complaint, demurrer, and motion to strike. BACKGROUND

Plaintiff Radenko Milakovic (“Plaintiff”) filed this action on May 11, 2022 against defendants David Glasser, individually and as trustee of the Glasser Family Trust, Michele Tritt-Glasser, and 101 Studios LLC (“Defendants”).

On August 16, 2022, Plaintiff filed the operative First Amended Complaint against Defendants, asserting nine causes of action for (1) fraudulent conveyance; (2) intentional interference with prospective economic advantage; (3) negligent interference with prospective economic advantage; (4) judicial foreclosure of deed of trust; (5) promissory fraud; (6) breach of written contract; (7) breach of written contract; (8) breach of promissory note; and (9) specific performance.

Now pending before the court are the following motions: (1) motion for leave to file Second Amended Complaint, filed by Plaintiff on September 16, 2022; (2) demurrer to First Amended Complaint, filed by Defendants on September 29, 2022; and (3) motion to strike portions of First Amended Complaint, filed by Defendants on September 29, 2022.

REQUEST FOR JUDICIAL NOTICE

The court denies Defendants’ request for judicial notice because copies of text messages are not proper subjects for judicial notice since they are not “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.”  (Evid. Code, § 452, subd. (h).)

PLAINTIFF’S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

Plaintiff moves the court for an order granting him leave to file a Second Amended Complaint against Defendants (1) to add factual allegations in support of his claims; (2) to attach an additional exhibit; and (3) to add Doe defendants 51 through 100.  (Connelly Decl., ¶ 6.)

First, the court finds that Plaintiff has satisfied all requirements set forth in California Rules of Court, rule 3.1324.  Plaintiff has (1) included clean and redlined copies of the proposed Second Amended Complaint, (2) stated what allegations are proposed to be added, and (3) stated that no allegations are proposed to be deleted.  (Cal. Rules of Ct., rule 3.1324, subd. (a); Connelly Decl., Ex. A-B; Motion, p. 5:9-25; Connelly Decl., ¶¶ 5-6.)  Plaintiff has submitted the declaration of his counsel, who states that (1) the effect of the amendment is to establish that defendant David Glasser acknowledged his obligation to pay debt owing to Plaintiff; (2) the amendment is necessary to develop Plaintiff’s claims; (3) although counsel knew of these facts prior to filing the First Amended Complaint, Plaintiff now believes it necessary to include these allegations to “bolster the reference” to the already-pleaded facts; and (4) counsel discovered these additional allegations should be included after filing the First Amended Complaint.  (Cal. Rules of Ct., rule 3.1324, subd. (b); Connelly Decl., ¶¶ 7-10.)

Second, the court finds that Defendants have not met their burden of establishing that they will be prejudiced by the filing of the Second Amended Complaint.  (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048 [“it is an abuse of discretion to deny leave to amend where the opposing party was not prejudiced by the amendment”].)  Plaintiff filed the pending motion shortly after filing the operative First Amended Complaint, and trial has not been set.  Moreover, although the court notes that Defendants have filed a demurrer to Plaintiff’s First Amended Complaint, Defendants cannot claim prejudice as to the impact that the filing of the Second Amended Complaint will have on their demurrer, since Plaintiff filed his motion before Defendants filed their demurrer and motion to strike.  Similarly, the court notes that Defendants, in opposition, contend that Plaintiff’s motion must be denied because it is “virtually identical” to the First Amended Complaint, and because the proposed amendments do not remedy the defects set forth in their demurrer (i.e., the Second Amended Complaint is “futile”).  (Opp., p. 2:7-13.)  However, any issues with the merits of the Second Amended Complaint may be raised by demurrer or other appropriate pleadings directed to the amended complaint.  (Kittredge Sports Co., supra, 213 Cal.App.3d at p. 1048.)

Based on the facts set forth above, the court finds that (1) Plaintiff satisfied the requirements set forth in California Rules of Court, rule 3.1324; (2) Defendants have demonstrated no prejudice; and (3) it is in the interest of justice and judicial efficiency to allow Plaintiff to file the proposed Second Amended Complaint.  The court therefore grants Plaintiff’s motion for leave to file a Second Amended Complaint.  (Code Civ. Proc., § 473, subd. (a)(1).)

DEFENDANTS’ DEMURRER AND MOTION TO STRIKE

Defendants move the court for an order (1) sustaining their demurrer to each cause of action asserted by Plaintiff in his First Amended Complaint, and (2) striking from the First Amended Complaint Plaintiff’s request for punitive damages.

“[T]he filing of an amended complaint moots a motion directed to a prior complaint.”  (State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1131.)  The court has granted Plaintiff’s motion for leave to file Second Amended Complaint.  Thus, once Plaintiff files his Second Amended Complaint, Defendants’ demurrer and motion to strike will be moot.

The court therefore takes Defendants’ demurrer and motion to strike off calendar.

ORDER

            The court grants plaintiff Radenko Milakovic’s Motion for Leave to File Second Amended Complaint.  (Code Civ. Proc., § 473, subd. (a)(1).)

             The court orders plaintiff Radenko Milakovic to file the proposed Second Amended Complaint, in the form attached to the declaration of Kevin J. Connelly as Exhibit A, filed on September 16, 2022, within 5 days of the date of this order.

The court takes off calendar defendants David Glasser, individually and as trustee of the Glasser Family Trust, Michele Tritt-Glasser, and 101 Studios, LLC’s demurrer and motion to strike directed to the First Amended Complaint.

The court orders plaintiff Radenko Milakovic to give notice of this order.

IT IS SO ORDERED.

DATED:  October 21, 2022

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court