Judge: Stephen I. Goorvitch, Case: 19STCV38183, Date: 2022-07-29 Tentative Ruling

Case Number: 19STCV38183    Hearing Date: July 29, 2022    Dept: 39

Mafys US, Inc. v. Alex Assouline, et al.

Case No. 19STCV38183

Motion to be Relieved

Order to Show Cause

Motion to Amend

Motion to Sever

            A.        Motion to be Relieved

            Patrick Zakhary filed a motion to be relieved from representing EM Express.  The Court deemed to motion to have been filed on May 4, 2022, and set the hearing for July 7, 2022.  The hearing was continued to July 29, 2022.  Good cause having been shown, Mr. Zakhary is relieved from representing EM Express.  This order is conditioned on Mr. Zakhary serving this order upon EM Express, by and through its representative, and filing a proof of service.  Once Mr. Zakhary does so, he shall be relieved.

            B.        Order to Show Cause re: Striking the Answer of EM Express

            On May 5, 2022, the Court issued an Order to Show Cause why it should not strike the answer of the entity defendant—which is EM Express—for lack of representation.  The Court has reviewed and considered the declaration of Alex Assouline requesting additional time for his company, EM Express, to retain counsel.  Mr. Assouline’s declaration states as follows: “Because EM Express is not operating, insolvent, has hardship in raising litigation funds, and the case history, it has been difficult retaining competent and affordable legal representation.”  (Declaration of Alex Assouline, ¶ 5.) 

            The Court is not persuaded.  This case was filed on October 24, 2019, meaning that it is approaching the three-year date.  EM Express has had almost three months’ notice of the need to retain counsel, to no avail.  The record does not suggest that EM Express will be able to do so in an expeditious manner.  No actual or prospective counsel has made any appearance in this case.  Therefore, the Court denies the request to continue this OSC hearing and strikes the answer of EM Express.  Plaintiff may seek entry of default and, at the appropriate time, default judgment.

            C.        Motion to Amend

            Defendant Laurent Charbonnier filed a motion for leave to file a first amended answer.  Under Code of Civil Procedure section 473, subdivision (a)(1), “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.”  The Court has wide discretion to allow either party to amend pleadings “upon any terms as may be just.”  (See Code Civ. Proc., § 473, subd. (a)(1).)  Judicial policy favors resolution of all disputed matters between the parties and, therefore, leave to amend is liberally granted.  (Berman vs. Bromberg (1986) 56 Cal.App.4th 936, 945.)  “[I]t is an abuse of discretion for the court 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.)

Under California Rules of Court, rule 3.132424, a motion to amend a pleading must include a copy of the proposed amendment and state the allegations that the moving party proposes to add or delete.  (Cal. Rules of Court, rule 3.1324, subd. (a).)  California Rules of Court, rule 3.124 also requires that the moving party advance a declaration stating the effect of the amendment, why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and the reasons why the request for amendment was not made earlier.  (Cal. Rules of Court, rule 3.1324, subd. (a).)

Here, Defendant advances the declaration of his counsel, Patrick Zakhary (“Counsel”).  Counsel states that, upon further review of this matter, Counsel determined that Defendant should assert an affirmative defense for lack of capacity.  Counsel seeks leave to assert this defense.  However, as Plaintiffs point out in opposition, Counsel does not explain why Defendants could not have sought to add this defense earlier.  The discovery responses that Counsel cites as a basis for this motion are dated June 1, 2020.  Accordingly, the motion is denied.

            D.        Motion to Sever

Defendant Laurent Charbonnier filed a motion to sever the claim for misappropriation of trade secrets from the breach of contract claims.  Under Code of Civil Procedure section 1048, “The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.”  (Code Civ. Proc., § 1048, subd. (b).)  The Court denies the motion without prejudice to reconsideration of the issue closer to trial.

E.         Trial Setting Conference

The Court sets the following dates for trial:

Final Status Conference:         _____________

Trial:                                        _____________

The motions and discovery cut-off shall be based on the new trial date.

            F.         Notice

            The Court orders Plaintiff’s counsel to provide notice to all parties except the representative of EM Express.  The Court orders Mr. Zakhary to provide notice to the representative of EM Express as a condition of being relieved in this case.