Judge: Stephen P. Pfahler, Case: 22STCV08051, Date: 2024-04-23 Tentative Ruling
Case Number: 22STCV08051 Hearing Date: April 23, 2024 Dept: 68
Dept.
68
Date:
4-23-24 c/f 3-7-24
Case
#: 22STCV08051
Trial
Date: 6-10-24
DOCUMENTS
MOVING
PARTY: Plaintiff, Gavrielli Brands, LLC
RESPONDING
PARTY: Unopposed/Defendant, Empire Container Freight Station, Inc.
RELIEF
REQUESTED
Motion
to Compel Responses to Request for Production of Documents (set two)
SUMMARY
OF ACTION
Plaintiff Gavrielli Brands, LLC imported certain footwear
for sale in the United stated under the “Tieks” brand. Third party Catrone
Freight Logistics coordinated the importation of the shipment(s) from the Port
of Long Beach and storage of the merchandise from the with defendant Empire
Container Freight Station, Inc. While Plaintiff utilized the services of
Defendant, beginning in 2017, Plaintiff began to discover missing merchandise appearing
for sale on eBay. When Plaintiff confronted Defendant, a counter demand for
$732,915.50 in storage charges was presented, and denial of access to the
property without payment. Plaintiff contends Defendant “stole” at least 21,528
pairs of shoes from the shipments at a retail value of $4.3 million.
On March 7, 2022, plaintiff filed its complaint for Possession
of Personal Property, Conversion, Negligence, Promissory Fraud, and Unfair
Competition. A 170.6 challenge led to reassignment from Department 51 to 68. On
June 14, 2022, Defendant answered and filed a cross-complaint for Breach of
Contract, Open Account, and Unfair Business Practices. On December 7, 2022, a
first amended cross-complaint was filed. The court sustained the demurrer to
the first amended cross-complaint with 20 days leave to amend on February 6,
2023. The second amended cross-complaint was filed on March 2, 2023. On May 16,
2023, the court sustained the demurrer to the second amended cross-complaint
without leave to amend.
On January 30, 2024, Empire Container Freight Station, Inc.
filed a 170.6 peremptory challenge to the court. The challenge was accepted and
the case reassigned. On February 23, 2024, the court (Department 1) entered a
subsequent stipulation rescinding the second filed 170.6 peremptory challenge
brought by Empire Container Freight Station, Inc., and restoring previously
vacated hearings and the trial.
RULING: Granted.
Plaintiff Gavrielli Brands, LLC moves to compel responses to
request for production of documents (set two) from Defendant, Empire Container
Freight Station, Inc. The motion was reserved as a motion to compel further
responses, but in fact only seeks initial responses.
Plaintiff
represents service of Request for Production of Documents (set two) on November
3, 2023. [Declaration of Benjamin Smith, ¶ 2, Ex. 2.] According to Plaintiff,
at the time of the filing of the motion, no responses were received. [Id.]
The motion comes following a number of prior motions to
compel responses, further responses, issue, and significant monetary sanctions
beginning on August 9, 2022. The court electronic filing system shows no
opposition at the time of the tentative ruling publication cutoff. Plaintiff in
reply also confirms the lack of any filed opposition.
The motion is granted. Defendant Empire Container Freight
Station, Inc. is ordered to serve verified responses to Request for Production
of Documents (set two) without objections within ten days. (Code Civ. Proc., §
2031.300, subd. (a-b).)
The minimum amount of sanctions for each motion to compel
production of documents increased to $1,000 per motion. (Code Civ. Proc., §
2023.050, subd. (a)(1).) The court therefore imposes sanctions in the amount of
$1,000 joint and severally imposed against both Defendant Empire Container
Freight and counsel for Defendant, and payable within 30 days of this order. (Code
Civ. Proc., § 2031.300, subd. (c),)
Trial
remains set for June 10, 2024. Two motions to compel depositions and one motion
to “enforce court order” also currently scheduled for July 11, August 6, and 7,
2024, respectively.
Defendant
to give notice.
Dept.
68
Date:
4-23-24
Case
#: 22STCV08051
Trial
Date: 6-10-24
LEAVE TO AMEND
MOVING
PARTY: Plaintiff, Gavrielli Brands, LLC
RESPONDING
PARTY: Unopposed/Defendant, Empire Container Freight Station, Inc.
RELIEF
REQUESTED
Motion
for Leave to Amend to File a First Amended Complaint
SUMMARY
OF ACTION
Plaintiff Gavrielli Brands, LLC imported certain footwear
for sale in the United stated under the “Tieks” brand. Third party Catrone
Freight Logistics coordinated the importation of the shipment(s) from the Port
of Long Beach and storage of the merchandise from the with defendant Empire
Container Freight Station, Inc. While Plaintiff utilized the services of
Defendant, beginning in 2017, Plaintiff began to discover missing merchandise appearing
for sale on eBay. When Plaintiff confronted Defendant, a counter demand for
$732,915.50 in storage charges was presented, and denial of access to the
property without payment. Plaintiff contends Defendant “stole” at least 21,528
pairs of shoes from the shipments at a retail value of $4.3 million.
On March 7, 2022, plaintiff filed its complaint for Possession
of Personal Property, Conversion, Negligence, Promissory Fraud, and Unfair
Competition. A 170.6 challenge led to reassignment from Department 51 to 68. On
June 14, 2022, Defendant answered and filed a cross-complaint for Breach of
Contract, Open Account, and Unfair Business Practices. On December 7, 2022, a
first amended cross-complaint was filed. The court sustained the demurrer to
the first amended cross-complaint with 20 days leave to amend on February 6,
2023. The second amended cross-complaint was filed on March 2, 2023. On May 16,
2023, the court sustained the demurrer to the second amended cross-complaint
without leave to amend.
On January 30, 2024, Empire Container Freight Station, Inc.
filed a 170.6 peremptory challenge to the court. The challenge was accepted and
the case reassigned. On February 23, 2024, the court (Department 1) entered a
subsequent stipulation rescinding the second filed 170.6 peremptory challenge
brought by Empire Container Freight Station, Inc., and restoring previously
vacated hearings and the trial.
RULING: Granted.
Plaintiff Gavrielli Brands, LLC moves for leave to amend to
file a first amended complaint in order to add a new cause of action for Breach
of Bailment, additional facts in support of the existing claims, and removal of
the request for possession of wrongfully withheld property from the prayer for
relief. The motion comes following Plaintiff regaining possession of its
property and the discovery of extensive damage, due to improper storage and
handling. Plaintiff submitted a notice of non-opposition/reply. The court
electronic filing system shows no opposition on file at the time of the
tentative ruling publication cutoff.
A
motion for leave to amend must comply with the requirements set forth in
California Rules of Court Rule 3.1324, which states as follows:
“(a) Contents of motion
A
motion to amend a pleading before trial must:
(1)
Include a copy of the proposed amendment or amended
pleading, which must be serially numbered to differentiate it from previous
pleadings or amendments;
(2)
State what allegations in the previous pleading are
proposed to be deleted, if any, and where, by page, paragraph, and line number,
the deleted allegations are located; and
(3)
State what allegations are proposed to be added to the
previous pleading, if any, and where, by page, paragraph, and line number, the
additional allegations are located.
(b) Supporting declaration
A
separate declaration must accompany the motion and must specify:
(1) The effect of the amendment;
(2) Why the amendment is necessary and
proper;
(3) When the facts giving
rise to the amended allegations were discovered; and
(4)
The reasons why the request for amendment was not made
earlier…” (emphasis added).
Dilatory delays and prejudice to the opposing parties is a
valid ground for denial. (Hirsa v.
Superior Court (1981) 118 Cal.App.3d 486, 490.) Prejudice exists where the amendment would
require delaying the trial, resulting in loss of critical evidence, or added
costs of preparation such as an increased burden of discovery. (Magpali v. Farmers Group, Inc. (1996) 48
Cal.App.4th 471, 486-488.)
Leave to amend is generally liberally granted. (Code Civ.
Proc., § 473(a); Mesler v. Bragg
Management Co. (1985) 39 Cal.3d 290, 296.) The court will not generally
consider the validity of the proposed amended pleading in ruling on a motion
for leave, instead deferring such determinations for a demurrer or motion to
strike, unless the proposed amendment fails to state a valid claim as a matter
of law. (Kittredge Sports Co. v. Sup.Ct. (Marker, U.S.A.) (1989) 213
Cal. App.3d 1045, 1048; California
Casualty Gen. Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 280–281
disapproved of on other grounds by Kransco
v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390.)
The motion comes to the court less than two months from the
current trial date, but provides very specific explanation regarding the timing
of the motion following the return of the property. [Declaration of Benjamin
Smith.] The court finds the motion sufficiently
supported, and the delay explained in context of later return of the property.
Because the changes arise from the
common core of facts and otherwise adds no material change to the underlying
action, the court finds no showing of significant prejudice to Defendant. Any
potential claimed prejudice insufficiently outweighs the liberal policy for
leave to amend. The trial remains closely set, but the court finds sufficient
time to address any potential new arguments pre-trial. (Magpali v.
Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-487; Hulsey v.
Koehler (1990) 218 Cal.App.3d 1150, 1159.)
The motion is therefore granted.
Moving party to file a separate copy of the first amended complaint within 10
days of the order.
Trial
remains set for June 10, 2024. Two motions to compel depositions and one motion
to “enforce court order” currently scheduled for July 11, August 6, and 7,
2024, respectively.
Defendant
to give notice.