Judge: Upinder S. Kalra, Case: 22STCV34721, Date: 2023-09-05 Tentative Ruling
1. If you wish to submit on the tentative ruling, please email the clerk at SMCdept51@lacourt.org (and “cc” all other parties in the same email) and notify all other parties in advance that you will not be appearing at the hearing. Include the word "SUBMISSION" in all caps in the subject line and include your name, contact information, the case number, and the party you represent in the body of the email. If you do not have access to the internet, you may call the clerk at (213) 633-0351.
If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear and argue the motion, and the Court may decide not to adopt the tentative ruling. Please note that the tentative ruling is not an invitation, nor an opportunity, to file any further documents relative to the hearing in question which are not authorized by statute or Rule of Court.
2. For any motion where no parties submit to the tentative ruling in advance, and no parties appear at the motion hearing, the Court may elect to either adopt the tentative ruling or take the motion off calendar, in its discretion.
3. DO NOT USE THE ABOVE EMAIL FOR ANY PURPOSE OTHER THAN TO SUBMIT TO A TENTATIVE RULING. The Court will not read or respond to emails sent to this address for any other purpose.
Case Number: 22STCV34721 Hearing Date: February 22, 2024 Dept: 51
Tentative Ruling
Judge Upinder S. Kalra, Department 51
HEARING DATE: February 22, 2024
CASE NAME: Sagi Jacob Cohen, et al. v. Better Escrow Services, a California Corporation, et al.
CASE NO.: 22STCV34721
MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT
MOVING PARTY: Plaintiffs Sagi Jacob Cohen and Shlomit Cohen
RESPONDING PARTY(S): None as of February 15, 2024
REQUESTED RELIEF:
1. An Order granting leave to file the Proposed Third Amended Complaint.
TENTATIVE RULING:
1. Motion for Leave to File Proposed Third Amended Complaint is GRANTED without prejudice.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
On October 31, 2022, Plaintiffs Sagi Jacob Cohen and Shlomit Cohen (“Plaintiffs”) filed a complaint against Defendants First Coast Home Improvement, LLC; First Coast Home Improvement, business entity of form unknown; Sparkling Stones, LLC; Mariam Kevliyan; Avetis Avetikian aka Avik Avetikian aka Avik Avetikyan; Narine Avetikyan; Michelle Maghalyan; California Quest Realty, aka Cal Quest Realty; Pacific Point SW, LLC; Pacific Point Realty Fund, LLC; and Better Escrow Services (“Defendants.”) The complaint alleges that Plaintiffs wanted to buy a house and used Defendants to facilitate the purchase. Plaintiffs signed a Residential Purchase Agreement and Joint Escrow Instructions for a house in Woodland Hills, California. Plaintiffs offer was allegedly accepted and was told by Defendant Avik to deliver a cashier’s check for $60,00 to Avik’s company, First Coast Home Improvement. However, Plaintiffs learned the house was sold and later Defendant Avik told Plaintiffs to wire $247,722.52 to Better Escrow Services. Plaintiffs discovered that the wired money was not used to buy the Woodland Hills house, but to purchase an unrelated property in Altadena. Defendant failed to repay the funds.
On December 6, 2022, Defendant Better Escrow Services filed an Answer.
On December 29, 2022, Defendant Narine Avetikyan filed a Demurrer, which was SUSTAINED, with leave to amend.
On April 28, 2023, Plaintiffs filed a First Amended Complaint.
On May 26, 2023, Defendant Better Escrow Services filed an Answer.
On May 30, 2023, Defendant Narine Avetikyan filed a Demurrer, which was SUSTAINED, with leave to amend.
On August 2, 2023, Defendants Mariam Kevliyan and Sparkling Stones, LLC, filed an Answer.
On October 19, 2023, Plaintiffs filed a Second Amended Complaint.
On November 2, 2023, Defendant Better Escrow Services filed an Answer.
On November 22, 2023, Defendant Narine Avetikyan filed a demurrer to the Second Amended Complaint.
On January 9, 2024, Defendants Pacific Point Realty Fund, LLC and Pacific Point SW, LLC filed a demurrer with motion to strike to the Second Amended Complaint.
On January 26, 2024, Plaintiffs filed the instant Motion for Leave to File a Third Amended Complaint.
On January 31, 2024, Plaintiffs dismissed Pacific Point SW, LLC and Pacific Point Realty Fund, LLC.
On February 1, 2024, the court advanced the hearing on Plaintiffs’ Motion for Leave to File a Third Amended Complaint to February 21, 2024.
On February 2, 2024, Defendants Sparkling Stones, LLC and Marian Kevliyan filed a demurrer with motion to strike portions of the Second Amended Complaint.
Oppositions were due as of February 6, 2024. As of February 15, 2024, no oppositions have been filed.
LEGAL STANDARD
Leave to amend is permitted under Code of Civil Procedure § 473(a) and § 576. The policy favoring amendment and resolving all matters in the same dispute is “so strong that it is a rare case in which denial of leave to amend can be justified. [Citation.]” (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422.) Notwithstanding the “policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial [citations], this policy should be applied only ‘where no prejudice is shown to the adverse party . . . .’ [citation]. A different result is indicated ‘where inexcusable delay and probable prejudice to the opposing party’ is shown. [Citation].” (Magpali v. Farmers Group (1996) 48 Cal.App.4th 471, 487.)
A motion for leave to amend a pleading must also comply with the procedural requirements of California Rules of Court, Rule 3.1324, which requires a supporting declaration to set forth explicitly what allegations are to be added and where, and explicitly stating what new evidence was discovered warranting the amendment and why the amendment was not made earlier. The motion must also include (1) a copy of the proposed and numbered amendment, (2) specifications by reference to pages and lines the allegations that would be deleted and added, and (3) a declaration specifying the effect, necessity and propriety of the amendments, date of discovery and reasons for delay. (See Cal. Rules of Court, Rule 3.1324(a), (b).)
ANALYSIS:
Plaintiffs contend leave to amend is warranted because they received documents from, now dismissed, defendants Pacific Point SW, LLC and Pacific Point Realty Fund LLC providing probable cause that Defendant Narine Avetikyan was an active participant in the business. Plaintiffs also contend that Defendants will not suffer prejudice by an amendment.
First, the motion includes the proposed amended pleading. (CRC, Rule 3.1324(a)(1).) Second, the motion includes a redlined copy of the proposed amended pleading indicating the new allegations and any deleted allegations. (CRC, Rule 3.1324(a)(2)-(3).) The Points and Authorities as well as the exhibits substantially comply with CRC, Rule 3.1324(b), explaining why the amendment is necessary and proper, when the facts giving rise to the allegations were discovered, and the reasons why the request for amendment was not made earlier as required by,. The Declaration of John Deer also attaches and authenticates the Proposed Third Amended Complaint and various documents produced in discovery. (Deer Decl. ¶¶ 2-4.)
CONCLUSION:
For the foregoing reasons, the Court decides the pending motion as follows:
1. Motion for Leave to File Proposed Third Amended Complaint is GRANTED.
Moving party is to give notice.
IT IS SO ORDERED.
Dated: February 22, 2024 __________________________________ Upinder S. Kalra
Judge of the Superior Court