Judge: Teresa A. Beaudet, Case: 21STCP00625, Date: 2023-01-09 Tentative Ruling

Case Number: 21STCP00625    Hearing Date: January 9, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

On February 25, 2021, Plaintiff Kenneth Wengrod, Trustee of The Manhattan Trust, derivatively on behalf of Lily Bleu, Inc. (“Plaintiff”) filed this action against Defendants Michael Weiss and Barbara Clark Cambilargiu, and “Nominal Defendant” Lily Bleu, Inc. (collectively, “Defendants”). The Complaint asserts causes of action for (1) breach of fiduciary duty, (2) corporate waste, and (3) unjust enrichment.

Plaintiff now moves for an order allowing leave to amend the Complaint. Defendants oppose.

Discussion

Pursuant to Code of Civil Procedure section 473(a)(1), “[t]he court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading.” Amendment may be allowed at any time before or after commencement of trial. ((Code Civ. Proc., § 576.)  “[T]he court’s discretion will usually be exercised liberally to permit amendment of the pleadings. The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified.” ((Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428 [internal citations omitted].) “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend….”   ((Morgan v. Superior Court of Los Angeles County (1959) 172 Cal.App.2d 527, 530.) Prejudice includes “delay in trial, loss of critical evidence, or added costs of preparation.” ((Solit v. Tokai Bank (1999) 68 Cal.App.4th 1435, 1448.)

A motion to amend a pleading before trial must include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments. (Cal. Rules of Court, rule 3.1324, subdivision (a).) The motion must also state what allegations are proposed to be deleted or added, by page, paragraph, and line number. (Ibid.) Finally, “[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.” (Cal. Rules of Court, rule 3.1324, subd. (b), emphasis added.)

Plaintiff seeks to amend the Complaint to add causes of action for fraud (concealment), fraud (misrepresentation), and negligent misrepresentation. (Kolber Decl., ¶ 7, Ex. L.) Plaintiff also seeks to add additional allegations to the Complaint. (Ibid.) However, although Plaintiff indicates that certain parties were deposed (Kolber Decl., ¶ 2), Plaintiff’s counsel’s supporting declaration does not discuss when the facts giving rise to the proposed amended allegations were discovered. (See Cal. Rules of Court, rule 3.1324, subd. (b)(3).) In addition, Plaintiff’s counsel’s declaration does not discuss the reasons why the request for amendment was not made earlier. (Cal. Rules of Court, rule 3.1324, subd. (b)(4).) As set forth above, the requirements of Cal. Rules of Court, rule 3.1324, subdivision (b) are mandatory.

In addition, Defendants note that the motion was untimely served. Pursuant to Code of Civil Procedure section 1005(b), “[u]nless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing.” Under Code of Civil Procedure section 1010.6, subdivision (a)(4)(B), “[a]ny period of notice, or any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days.” (Emphasis added.) The proof of service attached to Plaintiff’s motion indicates that the motion was served by electronic service on December 14, 2022. Eighteen court days prior to the January 9, 2023 hearing date is December 13, 2022. 

In light of the foregoing, the Court need not and does not address Defendants’ remaining arguments in the opposition.

Conclusion

Based on the foregoing, Plaintiff’s motion for leave to file an amended complaint is denied without prejudice. 

Defendants are ordered to give notice of this ruling.

DATED:  January 9, 2023                              ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court