Judge: Theresa M. Traber, Case: 21STCV11739, Date: 2023-03-02 Tentative Ruling

Case Number: 21STCV11739    Hearing Date: March 2, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     March 2, 2023                        TRIAL DATE: NOT SET

CASE:                         Avraham Bibi v. Roey Burg, et al.

CASE NO.:                 21STCV11739           

MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT

MOVING PARTY:               Plaintiff Avraham Bibi

RESPONDING PARTY(S): Defendants Revital Agi and Eydan Berger

CASE HISTORY:

·         03/26/21: Complaint filed

·         08/01/22: Cross-Complaint filed by Roey Burg and ADB Group Inc. as to Avraham Bibi

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action for breach of contract, breach of fiduciary duty, and fraud arising from the breakdown of a joint venture between the parties in the beauty supply and spa business. Plaintiff alleges that Defendants entered into unauthorized partnership agreements and misappropriated company assets.

Plaintiff moves for leave to file a first amended complaint.

TENTATIVE RULING:

Plaintiff’s Motion for Leave to File a First Amended Complaint is GRANTED.

Plaintiff is to file a clean copy of the First Amended Complaint within 10 days of this order. Further leave to amend will not be granted if Plaintiff does not comply with this requirement.

DISCUSSION:

Plaintiff moves for leave to file a first amended complaint pursuant to Code of Civil Procedure sections 473(a) and 576.

Plaintiff’s Evidentiary Objections

            Plaintiff objects to the Declaration of Ryan Davis filed in support of the opposition to this motion. Plaintiff cites no law requiring the Court to rule on these objections in connection with a motion for leave to amend, as opposed to a motion for summary judgment or a special motion to strike. (Code Civ. Proc. §§ 437c; 425.16.) To the extent that the evidence at issue is relevant to the Court’s ruling, Plaintiff’s objections will be taken into account when evaluating that evidence.

Legal Standard

The Court may, “at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, . . . allow the amendment of any pleading.” (Code Civ. Proc. § 576.) A motion to amend a pleading before trial must meet the following requirements:

(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.

(Cal. Rules of Court Rule 3.1324.) Other factors to be considered on a motion for leave to amend include the conduct of the moving party and any significant delay in the presentation of the amendment. (Leader v. Health Indus. Of Am. Inc. (2001) 89 Cal.App.4th 603, 613.)

Analysis

Plaintiff requests leave to file a first amended complaint on the grounds that the sudden illness of Plaintiff’s lead counsel prevented Plaintiff from timely filing a First Amended Complaint, pursuant to the Court’s December 5, 2023 order sustaining Defendants’ demurrer to the Complaint with leave to amend.

The undisputed facts are these: On December 5, 2023, the Court sustained Defendants’ demurrer to the Complaint, and granted Plaintiff 20 days leave to file a first amended complaint. (December 5, 2023 Order.) No First Amended Complaint was ever filed. Plaintiff contends that the proposed First Amended Complaint could not be timely filed because Plaintiff’s lead counsel was hospitalized with a serious medical condition shortly before the deadline to file the Amended Complaint. (Declaration of Steven Berkowitz ISO Mot. ¶ 2.) When Attorney Berkowitz returned to the office in January 2023, he asked Defendants’ counsel to stipulate to the filing of the First Amended Complaint, but was rebuffed. (Id.) Plaintiff argues that these developments constitute surprise and excusable neglect, such that the Court should permit the late filing of the First Amended Complaint.

In opposition, Defendants argue that leave to amend should not be granted because, first, Plaintiff’s motion makes no effort to comply with the requirements of Rule 3.1324. Defendants are correct that Plaintiff has not met the procedural requirements of the Rule beyond attaching a copy of the proposed First Amended Complaint. (See Plaintiff’s Exh. A.) However, as Defendants concede, the Court has wide discretion in determining whether to allow amendment. (Leader, supra, 89 Cal.App.4th at 613.) Given the unusual nature of this motion as, essentially, seeking to extend the time to file the First Amended Complaint without having to meet the procedural requirements of Rule 3.1324, the Court is willing to overlook non-compliance with the Rule in this instance.

Defendants next argue that, notwithstanding Plaintiff’s procedural noncompliance, leave to amend should not be granted because Plaintiff was not diligent in seeking to amend the Complaint. Plaintiff concedes that the proposed First Amended Complaint was sent to Defendants’ counsel on November 18. (Berkowitz Decl. ¶ 3.) Defendants argue that, since the proposed First Amended Complaint was prepared by November 18, Plaintiff could and should have filed the First Amended Complaint between December 5, the date of the Court’s order, and December 21, when Mr. Berkowitz was hospitalized. Further, Defendants argue, another lawyer from Mr. Berkowtiz’s firm, including Attorney Etehad, Plaintiff’s former counsel of record, could have filed the Amended Complaint after Mr. Berkowitz’s hospitalization, or could have approached the Court and Defendants regarding an extension of the time to amend the Complaint.  

The Court is not persuaded by Defendants’ arguments as to Plaintiff’s diligence or lack thereof.  Although Plaintiff has conceded that the proposed First Amended Complaint is unchanged from its November 18, 2022 draft, Defendants cite no law—and the Court is aware of none—standing for the position that a party acts without sufficient diligence by not filing an amended complaint in advance of the Court-ordered deadline to do so. All that was required of Plaintiff pursuant to the Court’s order was to file the Amended Complaint before the deadline expired. Further, the Court is reluctant to conclude that the failure of Plaintiff’s counsel to file the First Amended Complaint or contact the Court or Defendants’ counsel is indicative of a lack of diligence when the lead attorney on the case was suddenly hospitalized right before an impending major holiday. Such a conclusion, as demanded by Defendants, also goes against the strong presumption in favor of permitting amendment.

Defendants raise an argument concerning the propriety of relief under Code of Civil Procedure section 473(b). As Plaintiff does not seek relief under this provision, however, the Court declines to address this argument.

Defendants’ final argument is that the First Amended Complaint is fatally defective on the merits. Defendants contend that the First Amended Complaint contains the same defects as the original Complaint, and therefore leave to amend should not be granted. The Court declines to address this argument in the context of a motion for leave to amend.

CONCLUSION:

Accordingly, Plaintiff’s Motion for Leave to File a First Amended Complaint is GRANTED.

Plaintiff is to file a clean copy of the First Amended Complaint within 10 days of this order. Further leave to amend will not be granted if Plaintiff does not comply with this requirement.

            Moving Party to give notice.

IT IS SO ORDERED.

Dated: March 2, 2023                         ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.