Judge: Stephanie M. Bowick, Case: 23STCV30846, Date: 2025-03-11 Tentative Ruling
Case Number: 23STCV30846 Hearing Date: March 11, 2025 Dept: 19
3/11/2025
Dept. 19
Hon. Rolf Treu, Judge
presiding
MORAD MATIAN and CITY POCKET LOS ANGELES, INC. v. MOIZ
KABOUD, ADRIAN NASSIMI, A&Y INTERNATIONAL GLOBAL, INC., and A.F.M.K., INC.,
and DOES (23STCV30846)
Counsel for Plaintiffs/moving parties: MORAD MATIAN
and CITY POCKET LOS ANGELES, INC. (Law Offices of William G. Silverstein)
Counsel for Defendants/opposing parties: ADRIAN
NASIMI, MOIZ KABOUD, A & Y INTERNATIONAL GLOBAL, INC., A.F.M.K, INC. (Law
Offices of Harvey Stern and Associates)
MOTION FOR
LEAVE TO
AMEND COMPLAINT (filed
2/18/2025)
TENTATIVE RULING
Plaintiffs’ Motion for Leave to Amend is GRANTED. The
proposed First Amended Complaint is filed this date.
I.
BACKGROUND
On December 18, 2023, plaintiffs MORAD MATIAN and CITY
POCKET LOS ANGELES, INC. (“Plaintiffs”) filed this action against defendants MOIZ
KABOUD, ADRIAN NASSIMI, A&Y INTERNATIONAL GLOBAL, INC., and A.F.M.K., INC. (“Defendants”).
The Complaint asserts against Defendants the following
causes of action:
1. Breach
of Contract
2. Fraud
3. Breach
of Fiduciary Duty.
The Complaint alleges the following: “Defendants Kaboud and
Nassimi breached their fiduciary duty to Plaintiff Matian by conspiring to
conceal and dishonestly concealing their true intentions not to comply with the
terms of the partnership agreement to equally split the profits and costs,
including attorney's fees of the partnership.” (Complaint, Attachment 2.)
A. The Parties’ Arguments
On February 3, 2025, Plaintiffs filed a Motion for Leave
to Amend, arguing:
· Plaintiffs make the Motion to correct an error in the
original Complaint concerning whether the operative partnership agreement was
written or oral.
· Plaintiffs make the Motion to plead the additional legal
theories False Promise and Unfair Competition either based on the same facts
alleged in the Complaint or on facts of which Defendants have long been aware
of.
·
Some of these
facts were only learned by Plaintiff after discovery closed, as Defendants’
lied in their sworn deposition testimony.
On February 18, 2025, Defendants filed an opposition,
arguing:
·
Plaintiffs’
amended complaint is a sham. They have taken Defendants’ trial brief and
falsely revised their allegations and interjected untrue facts and ignored
facts previously alleged.
·
Before, all of
the allegations were based on a “written contract” not an oral one.
·
Without a
contract the causes of action fail.
·
The Statute of
Frauds requires that any sale of merchandise valued at over $500 must be in
writing and signed by the party to be charged. (Commercial Code § 2201(1)).
·
Fraud in the
Inducement is not possible. The partnership could not have been formed to purchase
goods since according to the complaint the purchase was made in July of 2019--
six months before the alleged agreement of January of 2020.
·
Exhibit “A” is
merely an invoice, not a contract that identifies the parties or the terms
agreed upon by the parties.
·
Plaintiffs
attempt to plead a new cause of action-- that in 2023 Defendants promised
Plaintiffs that they would pay the SXT judgment.
·
Plaintiffs’
proposed Amended Complaint does not offer evidence of consideration for the
alleged promises beyond a promise to compromise for a worthless claim.
·
Unfair
Competition would have taken place in 2020 and therefore is barred by the Statute
of Limitations.
·
Plaintiffs do
not explain delay for over a year since this action was initiated.
·
Defendants
would be prejudiced conducting more discovery.
On March 4, 2025, Plaintiffs filed a reply, arguing:
·
The proposed
amendment is not a sham, because Plaintiffs explain the reasons for the
revisions.
·
The disputed
contract did not involve a sale of goods between Plaintiffs and Defendants, and
thus the statute of frauds is inapposite.
·
The statute of
limitations did not accrue until the occurrence of damages.
·
The
consideration for Defendants’ false promise to pay the damages awarded in another
lawsuit, was supported by Plaintiffs’ forbearance from suing Defendants.
·
Defendants
cannot credibly argue they will suffer prejudice by the amendment when
allegations of the formerly alleged written contract and oral contract are
identical and Plaintiff Matian and Defendants were present when the false
promise was made.
A.
Legal
Standard
“[D]iscretion
should be exercised liberally in favor of amendments, for judicial policy
favors resolution of all disputed matters in the same lawsuit.” (Kittredge Sports Co. v. Superior Court
(1989) 213 Cal.App.3d 1045, 1047.)
B.
Sham,
Delay and Prejudice
Defendants assert that no explanations
were given for the inconsistencies and delays. Plaintiffs respond that they did
explain the reasons for the revisions.
A court can deny leave to
amend after long, inexcusable delay, where there is cognizable prejudice, such
as discovery needed, trial delay, critical evidence lost, or added preparation
expense. (Solit v. Tokai Bank (1999)
68 Cal.App.4th 1435, 1448; Atkinson v.
Elk Corp. (2003) 109 Cal.App.4th 739, 761; Green v. Rancho Santa Margarita Mortgage Co. (1994) 28 Cal.App.4th
686, 692; Magpali v. Farmers Group, Inc.
(1996) 48 Cal.App.4th 471, 487. But see
Emerald Bay Community Assn. v. Golden Eagle Ins. Corp. (2005) 130
Cal.App.4th 1078, 1097 [unreasonable delay in making a motion to amend a
complaint alone is sufficient grounds
to exercise court discretion to deny leave to amend, even absent any
prejudice]; Leader v. Health Industries
of America, Inc. (2d Dist.
2001) 89 Cal.App.4th 603, 613 [same]; Roemer
v. Retail Credit Co. (1975) 44 Cal.App.3d 926, 939-940 [same].)
In considering whether there
was unjustified delay as to a motion for leave to file an amended pleading, the
court should consider whether the party, “was not diligent in offering the
amendment after knowledge of the facts….” (Solit
v. Tokai Bank (1999) 68 Cal.App.4th 1435, 1448.)
“‘“[I]t is irrelevant that
new legal theories are introduced as long as the proposed amendments 'relate to
the same general set of facts….”’” (Atkinson
v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.)
A newly raised argument or
court ruling may be justification for delay in moving for leave to amend. (Cf. Foundation For Taxpayer And Consumer Rights
v. Nextel Communications, Inc. (2006) 143 Cal.App.4th 131, 136 [“The
argument fails because the FTCR had no reason to amend its complaint until
Nextel sought to apply Proposition 64 to this case.”].)
That evidence of an added
theory of liability would become admissible against opposing parties, after
leave to amend a complaint, does not constitute the kind of prejudice
supporting denial. (Hirsa v. Superior
Court (1981) 118 Cal.App.3d 486, 490.)
Here, the Court finds that inconsistencies were explained, such
as the prior allegations of a written contract were incorrect, and discovery
and the motion for judgment on the pleadings justify some delay.
Thus, the Court finds no reasons to deny leave to amend here.
C.
Merits of Amended
Pleading
The bulk of the opposition raises various theories going to
the merits of the allegations, such as the sufficiency of the alleged contract
terms and lack of supportive evidence.
Courts generally do not
consider the validity of proposed amendments to a pleading. (Kittredge Sports Co. v. Superior Court
(1989) 213 Cal.App.3d 1045, 1047; Atkinson
v. Elk Corp. (2006) 109 Cal.App.4th 739, 760 [“the better course of action
would have been to allow … [plaintiff] to amend the complaint and then let the
parties test its legal sufficiency in other appropriate proceedings.”].)
Here, it is
especially logical to consider such arguments pursuant to some authorized
motion for testing pleadings, and opposed to incomplete briefing of a motion
for leave to amend.
III. DISPOSITION
Plaintiff‘s motion is GRANTED.