Judge Thomas D. Long, Case Number: 21STCV27084, Date: 2023-10-05 Tentative Ruling

On January 9, 2024, Plaintiffs filed a motion for leave to file a first amended complaint (“FAC”).

On January 10, 2024, Plaintiffs’ counsel filed motions to be relieved as counsel.

The Court may, in its discretion and after notice to the adverse party, allow an amendment to any pleading. (Code Civ. Proc., § 473, subd. (a)(1).) A motion to amend a pleading must include a copy of the proposed amendment or amended pleading which must be serially numbered to differentiate it from previous pleadings or amendments and must state what allegations in the previous pleading are proposed to be deleted or added, if any, and where, by page, paragraph, and line number, the allegations are located. (California Rules of Court, rule 3.1324(a).) The motion shall also be accompanied by a declaration attesting to the effect of the amendment, why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and why the request for amendment was not made earlier. (California Rules of Court, rule 3.1324(b).)

Plaintiffs provide a redlined copy of the proposed FAC showing all amendments. (Mulvey Decl., Ex. C.) Plaintiffs summarize the proposed amendments in four categories: (1) non-substantive clerical corrections; (2) factual corrections and/or the inclusion additional facts, allegations and evidence which was previously omitted from the original complaint; (3) amending the ninth cause of action to plead all elements under the applicable Civil Code sections; and (4) the addition of new bases for a cause of action based both on facts already pled and the facts and evidence which was added. (Mulvey Decl. ¶ 15.) Plaintiffs’ counsel “believe[s] the amendment is necessary and proper in the furtherance of justice, to seek, in good faith, to correct errors, amend a cause of action consistent with the facts plead (including facts that were not originally included) and to ensure that the Plaintiffs have not been deprived of their statutory right to adjudicate their meritorious claims.” (Mulvey Decl. ¶ 16.) Plaintiffs’ counsel identifies each proposed amendment and the reasons for amendment in detail. (Mulvey Decl. ¶ 18.) The amendments come after a thorough review of the file and the facts after counsel substituted in on March 28, 2023. (Mulvey Decl. ¶ 3.) Beginning in June 2023, Plaintiffs’ counsel attempted to meet and confer with Defendants about filing the FAC, but Defendants would not stipulate to its filing. (Mulvey Decl. ¶¶ 4, 11.)

Defendants argue that the motion is untimely and Plaintiffs unduly delayed in seeking amendment. (Opposition at pp. 4-6.) In light of Plaintiffs’ new counsel substituting in late and attempting to meet and confer with Defendants only three months after being retained, Plaintiffs did not unduly delay in bringing this motion.

Defendants argue that they will be highly prejudiced by amendment because “it would cause further postponement of the final adjudication on this matter, postponement of the final assessment of damages, and would likely compromise Defendant’s ability to collect their damages prior to the disposal of Lawrence’s Bankruptcy proceedings.” (Opposition at pp. 11-12.) Trial is not until October 28, 2024, and there is no pending request to continue that date. Accordingly, amendment will not further delay adjudication of this case. Defendants have also known about the nature of the amendments since June 2023. (Mulvey Decl. ¶ 4.)

Defendants’ other arguments are primarily about the merits of the new claims, including the sufficiency of pleading and evidentiary support. (See Opposition at pp. 6-11.) However, the Court does not ordinarily consider the validity of the proposed amended pleading when determining whether to grant leave to amend. (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.)

Because there is no showing of prejudice, the motion for leave to file an amended complaint is GRANTED. The proposed FAC, received on January 9, 2024, is deemed filed as of February 1, 2024.

Steven T. Lowe, counsel of record for Plaintiffs Philip Lawrence and Philmar Studios Inc., seeks to be relieved as counsel. Counsel’s declarations state that the clients have been unable to meet their financial obligations to counsel. No party opposed the motions.

Absent a showing of resulting prejudice, an attorney’s request for withdrawal should be granted. (People v. Prince (1968) 268 Cal.App.2d 398, 406.) Counsel’s motions comply with California Rules of Court, rule 3.1362. Trial is not until October 28, 2024, and there is no prejudice to Plaintiffs.

On January 12, 2024, Defendants filed a notice of withdrawal of their motion for summary adjudication, but the March 14, 2024 hearing reservation was not cancelled. Due to the withdrawal of this motion, the proposed orders no longer contain correct information about the next hearing dates. The Court will modify this information before signing the orders.

The unopposed motions to be relieved are GRANTED and effective upon filing a proof of service showing service of the signed Form MC-053 orders and this order on Philip Lawrence, Philmar Studios Inc., and all parties who have appeared.

However, “a corporation cannot represent itself in a court of record either in propria persona or through an officer or agent who is not an attorney.” (Caressa Camille, Inc. v. Alcoholic Beverage Control Appeals Bd. (2002) 99 Cal.App.4th 1094, 1101.) Therefore, an Order to Show Cause Re: Failure to Retain New Counsel for Philmar Studios Inc. is scheduled for 05/03/2024 (May 3, 2024) at 8:30 a.m. in Department 48 at Stanley Mosk Courthouse. Philmar Studios Inc. must retain new counsel by that date or the Court may dismiss its claims.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court