Judge: Ronald F. Frank, Case: 21TRCV00625, Date: 2023-01-09 Tentative Ruling
Case Number: 21TRCV00625 Hearing Date: January 9, 2023 Dept: 8
Tentative Ruling¿¿
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HEARING DATE: January 9, 2023¿¿
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CASE NUMBER: 21TRCV00625
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CASE NAME: Dipu Haque,
et al v. Michael Ball, et al.
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MOVING PARTY: Plaintiffs, Dipu Haque, et al.
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RESPONDING PARTY: Mr.
Ball, but no opposition has been filed
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TRIAL DATE: Feb. 13, 2024
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MOTION:¿ (1) Motion for Leave of Court to
File/Serve First Amended Complaint
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Tentative Rulings: (1) GRANTED
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I. BACKGROUND¿¿¿
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A. Factual¿¿¿
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This action involves a self-represented
defendant who has filed no documents in this case other than his Answer over a
year ago. Plaintiffs are investors in various businesses established by
Defendant, Michael Ball (“Defendant”) memorialized in written contracts,
wherein Defendant is appointed manager of the investments upon an agreement to
provide Plaintiffs with unfettered access to the Businesses’ financial records
so that they may monitor their investments. Plaintiffs allege that since 2014,
they have invested approximately $20 million in the aforesaid business.
However, Plaintiffs argue that Defendant has breached his agreements with
Plaintiffs by refusing to grant them access to all of the businesses’ financial
records.
On August 25, 2021, Plaintiffs
filed their original complaint stating causes of action for breach of fiduciary
duties, an injunction allowing Plaintiffs to inspect financial records and an
accounting. At the time, Plaintiffs were represented by Epps & Coulson,
LLP.
Under Epps & Coulson, LLP,
Plaintiffs filed and served seventeen (17) sets of Special and Form Interrogatories,
and Requests for Production of Documents as well as subpoenas of business
records from accounts, businesses owned by Ball’s wife, seven banks, and owners
of properties identified by Ball as headquarters for the eight LLCs.
In mid-January 2022, Plaintiffs substituted
the Law Office of Rosa Kwong in the stead of Epps & Coulson, LLP. At that
time Plaintiffs had also received thousands of pages of records from two of the
banks in response to the Epps & Coulson, LLP’s subpoenas. Plaintiffs claim
that after reviews of the records, they learned that their investments were not
used to develop the clothing and beverages LLC’s, but rather, were
misappropriated by Ball for his and his wife’s personal use. Plaintiffs also
claim that further review of the file developed by Epps & Coulson, LLP, led them
to discover a promissory note documenting Plaintiff Sikder Holdings
International, Inc.’s loan of $1.5 Million to Ball – which Plaintiff claims he
has not repaid.
As such, Plaintiffs seek to file
a First Amended Complaint adding a Fourth and Fifth Cause of Action for Breach
of Promissory Note to recover the $1.5 million loan and for Fraud/Deceit.
B. Procedural¿¿¿
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On August 22, 2022, Plaintiffs filed this Motion Leave of Court to File/Serve First Amended Complaint. To
date, no opposition has been filed.
¿II. MEET AND CONFER ¿¿¿
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On August 4, 2022, Plaintiffs
forwarded a copy of the Proposed First Amended Complaint to Ball seeking his
stipulation to allow its filing. Plaintiffs have attached a copy of Rosa
Kwong’s email to her Declaration as Exhibit C. Plaintiffs assert in their motion
that Ball has not responded.
¿III. ANALYSIS¿¿
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Leave to amend is permitted under Code of Civil Procedure
section 473, subdivision (a) and section 576. The policy favoring amendment and
resolving all matters in the same dispute is “so strong that it is a rare case
in which denial of leave to amend can be justified. . ..” “Although courts are
bound to apply a policy of great liberality in permitting amendments to the
complaint at any stage of the proceedings, up to and including trial
[citations], this policy should be applied only ‘where no prejudice is shown to
the adverse party . . .. [citation]. A different result is indicated
‘where inexcusable delay and probable prejudice to the opposing party’ is
shown. [Citation].” (Magpali v. Farmers Group (1996) 48 Cal.App.4th 471,
487.)
A motion for leave to amend a pleading must also comply
with the procedural requirements of California Rules of Court, Rule 3.1324,
which requires a supporting declaration to set forth explicitly what
allegations are to be added and where, and explicitly stating what new evidence
was discovered warranting the amendment and why the amendment was not made
earlier. The motion must also include (1) a copy of the proposed and numbered
amendment, (2) specifications by reference to pages and lines the allegations that
would be deleted and added, and (3) a declaration specifying the effect,
necessity and propriety of the amendments, date of discovery and reasons for
delay. (See Cal. Rules of Court, rule 3.1324, subds. (a), (b).)
B.
Discussion
Plaintiffs seek to amend the Complaint by adding
a Fourth Cause of Action for Breach of Promissory Note to
recover the $1.5 million loan. Plaintiffs also seek to add a Fifth Cause of
Action for Fraud/Deceit. Plaintiffs have detailed that the proposed additions
would commence at Line 22 on age 9 through Line 27 on Page 14 of the Complaint.
The motion includes a copy of the proposed first amended complaint,
specifications by reference to pages and lines of the allegations that are be
added.
IV.
CONCLUSION¿¿¿
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For the foregoing reasons, Plaintiffs’ unopposed Motion
for Leave to File/Serve First Amended Complaint is GRANTED.
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Moving party is ordered to give notice.¿¿¿¿¿