Judge Teresa A. Beaudet, Case Number: 21STCV41588, Date: 2023-12-14 Tentative Ruling

RECANA SOLUTIONS LLC, Plaintiff, vs. GIULIANO-PAGANO COPORATION DBA GIULIANO’S BAKERY, et al. Defendants.	Case No.:	21STCV41588
	Hearing Date:	January 5, 2024
	Hearing Time:	10:00 a.m.
	[TENTATIVE] ORDER RE: MOTION BY PLAINTIFF TO [SIC] LEAVE TO FILE FIRST AMENDED COMPLAINT PURSUANT TO CCP 473(a)
AND RELATED CROSS-ACTION

Plaintiff Recana Solutions LLC (“Plaintiff”) filed this action against Defendants Giuliano-Pagano Corporation dba Giuliano’s Bakery (“Giuliano’s Bakery”) and NG Trucking LLC (“NG Trucking”) (jointly, “Defendants”). The Complaint alleges causes of action for (1) breach of written contract, (2) breach of oral contract, (3) open book account, and (4) open book account. The first and third causes of action of the Complaint are alleged against Giuliano’s Bakery, and the second and fourth causes of action of the Complaint are alleged against NG Trucking.

On January 24, 2022, Defendants filed a Cross-Complaint against Plaintiff, alleging causes of action for (1) breach of contract, (2) breach of oral contract, (3) fraud, (4) declaratory relief, and (5) unfair business practice.

Plaintiff now moves for leave to file a First Amended Complaint. NG Trucking opposes.

Pursuant to Code of Civil Procedure section 473, subdivision (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, subd. (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).)

Plaintiff asserts in the motion that “the court should allow PLAINTIFF to amend its complaint to set forth a cause of action against NG TRUCKING for Breach of Contract based upon a Written Agreement.” (See Motion, p. 3.) In his supporting declaration, Plaintiff’s counsel states that “[i]n my recent research of California law to oppose DEFENDANT NG TRUCKING’S Motion for Summary Judgment, I found authority for the proposition that, by agreeing to be bound by the terms of the Recana-Giuiano’s written agreement, DEFENDANT NG TRUCKING legally entered into a written contract with RECANA, the enforcement of which has a four-year statute of limitations. Because on the [sic] NG TRUCKING’S Motion for Summary Judgment is based on the two-year statute for breach of contract of an oral agreement, I have brought this motion to add a breach of contract based on written agreement claim against NG TRUCKING.” (Benjamin Decl., ¶ 2.)

As an initial matter, NG Trucking asserts that Plaintiff’s motion should be denied because it fails to comply with Code of Civil Procedure section 1005. Pursuant to Code of Civil Procedure section 1005, subdivision (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. The moving and supporting papers served shall be a copy of the papers filed or to be filed with the court. However, if the notice is served by mail, the required 16-day period of notice before the hearing shall be increased by five calendar days if the place of mailing and the place of address are within the State of California…” In addition, pursuant to Code of Civil Procedure section 1010.6, subdivision (a)(3)(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…”

Plaintiff’s instant motion was filed on December 13, 2023, and the proof of service attached to the motion indicates that it was served by mail and e-mail on December 13, 2023. NG Trucking asserts that under Code of Civil Procedure sections 1005 and 1010.6, Plaintiff’s motion should have been served on December 8, 2023. Indeed, sixteen court days prior to the January 5, 2024 hearing date is December 12, 2023, and two court days prior to December 12, 2023 is December 8, 2023.

NG Trucking also asserts that the motion should be denied because it fails to comply with California Rules of Court, rule 3.1324. Indeed, as noted by NG Trucking, Plaintiff’s motion does not show “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.” (Cal. Rules of Court, rule 3.1324, subd. (a)(2).) In addition, Plaintiff’s motion does not 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.” (Cal. Rules of Court, rule 3.1324, subd. (a)(3).) As set forth above, Plaintiff asserts that “the court should allow PLAINTIFF to amend its complaint to set forth a cause of action against NG TRUCKING for Breach of Contract based upon a Written Agreement.” (See Motion, p. 3.) But it is unclear what specific amendments Plaintiff seeks to make to the original Complaint.

NG Trucking asserts that here, Plaintiff is bound by its prior allegation that Plaintiff and NG entered an oral contract. As set forth above, the second cause of action of the Complaint is “as against NG Trucking for Breach of Oral Contract.” In the second cause of action, Plaintiff alleges that “[b]y failure to pay the invoices and interest thereon, Defendant Giuliano’s breached its written contract with Plaintiff. Plaintiff has been damaged by said breach in an amount not fully ascertained but in excess of $80,807.71…” (Compl., ¶ 18.) By contrast, the second cause of action of the proposed First Amended Complaint is “as against NG Trucking for breach of written contract based upond [sic] written agreement.” In the second cause of action of the proposed First Amended Complaint, Plaintiff alleges that “Plaintiff and NG Trucking’s agreement was to be bound by the same terms as the written agreement between Plaintiff and Giuliano,” and that “[b]y failure to pay the invoices and interest thereon, Defendant Giuliano’s breached its written contract with Plaintiff. Plaintiff has been damaged by said breach in an amount not fully ascertained but in excess of $ 80,807.71.” (Proposed First Amended Complaint, ¶¶ 18, 19.)[1]

On April 12, 2023, NG Trucking filed a motion for summary judgment or, in the alternative, summary adjudication. As noted by NG Trucking, on December 14, 2023, the Court issued a minute order granting the motion for summary judgment. The Court’s December 14, 2023 minute order provides, inter alia, that “the Court finds that NG Trucking has met its burden of demonstrating that Plaintiff’s second cause of action is time-barred, and that Plaintiff has failed to raise a triable issue of material fact as to this cause of action.” NG Trucking asserts that “Plaintiff is bound by its prior allegation that Plaintiff and NG entered an oral contract,” and that the Court should “disregard Plaintiff’s attempt to avoid the defects of the original time-barred complaint by creating a new scenario and adding facts inconsistent with those of its previous pleadings.” (Opp’n at pp. 7:27-28; 8:23-25.) In the reply, Plaintiff counters that the proposed amended complaint “does not change or contradict any of the actual facts already pled or testified to in this case. It only asserts a different legal theory to be applied to those facts.” (Reply at p. 2:26-28.)

NG Trucking also asserts in the opposition that Plaintiff’s request for leave to amend is untimely because the Court has already ruled on NG Trucking’s motion for summary judgment. In Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258, cited by Plaintiff, the Court of Appeal noted that “[t]he complaint limits the issues to be addressed at the motion for summary judgment. The rationale is clear: It is the allegations in the complaint to which the summary judgment motion must respond. Upon a motion for summary judgment, amendments to the pleadings are readily allowed. If a plaintiff wishes to expand the issues presented, it is incumbent on the plaintiff to seek leave to amend the complaint either prior to the hearing on the motion for summary judgment, or at the hearing itself.” (Internal citations omitted.) On December 14, 2023, NG Trucking’s motion for summary judgment or, in the alternative, summary adjudication was called for hearing, and on December 14, 2023 the Court issued a minute order granting the motion for summary judgment. (See December 14, 2023 minute order.)

In addition, NG Trucking notes that its motion for summary judgment or, in the alternative, summary adjudication was served on Plaintiff on April 12, 2023. NG Trucking asserts that “[n]ow, after the Court has already heard and granted NG’s MSJ, Plaintiff wishes to amend its complaint to add contradictory allegations. Plaintiff was on notice its claims were time-barred at least as of April 2023 and it could have sought leave to amend its complaint prior to the MSJ hearing.” (Opp’n at p. 9:21-24.) Plaintiff does not appear to address this point in the reply.

In light of the foregoing, the Court finds that Plaintiff’s motion is untimely, and that the motion does not comply with California Rules of Court, rule 3.1324. The Court does not find that Plaintiff has demonstrated good cause to file the proposed First Amended Complaint.

Based on the foregoing, the Court denies Plaintiff’s motion for leave to file a First Amended Complaint.

[1]The Court notes that it is unclear why the second causes of action of the Complaint and proposed First Amended Complaint both reference “Giuliano’s” breach of the alleged contract. It appears that such references are typos.

Superior Court of California

County of Los Angeles

Department 50