Case Number: BC629121 Hearing Date: June 18, 2019 Dept: 78

Superior Court of California
County of Los Angeles
Department 78

gary paul o’connor;

Plaintiff,

vs.

BOOSTZ, INC., et al.;

Defendants.

AND ALL RELATED CROSS-ACTIONS

Case No.:

BC629121

Hearing Date:

June 18, 2019

[TENTATIVE] RULING RE:

Defendant and Cross-Complainant Greta Curtis’s Motion to Amend First Amended Cross-Complaint.

Defendant and Cross-Complainant Greta Curtis’s Motion to Amend First Amended Cross-Complaint is DENIED without prejudice.

Factual Background

This action involves the sale of real property. Plaintiff Gary O’Connor (“O’Connor”) alleges that he is the trustee of a trust that is the owner of a 90.05 percent share in two parcels of real property in Los Angeles, the “Compton Property” and the “East 1st Property.” (First Amended Complaint (“FAC”) ¶ 1.) The Complaint alleges generally that O’Connor entered into a Purchase Agreement (“Purchase Agreement”) with the owners of the remaining interest in both properties in September 2014, including with Defendant and Cross-Complainant Greta Curtis (“Curtis”) and her alter ego corporations (FAC ¶ 34), and later entered into various Amendments, none of which were executed, through the fault of defendants. (FAC ¶¶ 2–4.)

Curtis filed a Cross-Complaint on May 25, 2017, and an amended cross-complaint (“FAXC”) on July 26, 2017, alleging that O’Connor breached his fiduciary duty to her by filing the instant lawsuit to enforce an allegedly void sales agreement, and by failing to account for or distribute rent to his co-tenants in the relevant property, including Curtis. (FAXC ¶¶ 42–50.)

procedural history

O’Connor filed his Complaint on August 1, 2016, alleging six causes of action:

Breach of Contract

Fraud

Specific Performance

Quiet title

Declaratory Relief

Injunctions

On May 25, 2017, Curtis filed a Cross Complaint (“XC”).

On June 9, 2017, this case was reassigned to this department.

On July 26, 2017, Curtis filed an Amended Cross-Complaint (“FAXC”) naming as cross-defendants O’Connor, Boostz, Hasbun, Baypoint Mortgage, Inc. (“Baypoint”), Valley Trust Deed Services, Inc., Amber Hasbun, Melissa Hasbun, Ammec, Inc., Westar Loan Servicing, Inc. Westar Financial Group, Inc., asserting claims for:

INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE (against Baypoint, Boost and Hasbun)

RESCISSION OF ESCROW AGREEMENT PURSUANT TO REVENUE AND TAXATION CODE §23304.1, 23304.5 (against Baypoint)

BREACH OF FIDUCIARY DUTY (against Hasbun)

BREACH OF FIDUCIARY DUTY (against Baypoint)

BREACH OF FIDUCIARY DUTY (against O’Connor)

BREACH OF FIDUCIARY DUTY (against Boostz)

QUANTUM MERUIT (against all Cross-Defendants except O’Connor)

UNFAIR BUSINESS PRACTICES (B&P SEC. 17200) (against O’Connor)

ACCOUNTING (against O’Connor)

INDEMNIFICATION (against all cross-defendants)

COMPARATIVE INDEMNITY (against all cross-defendants)

DECLARATORY RELIEF (against all cross-defendants)

EQUITABLE INDEMNITY (against all cross-defendants)

CONTRIBUTION (against all cross-defendants)

On September 6, 2017, this court grants Curtis’ Motion for Judgment on the Pleadings with leave to amend as to the Fourth, Fifth, and Sixth Causes of Action, denied the motion as moot as to the First and Third Causes of Action, and denied the motion as to the second cause of action.

On September 18, 2017, O’Connor filed his First Amended Complaint alleging six causes of action:

BREACH OF CONTRACT;

FRAUD AND DECEIT;

SPECIFIC PERFORMANCE;

QUIET TITLE;

DECLARATORY RELIEF; and

INJUNCTIONS

This court on September 27, 2017, granted Cross-Defendants Boostz, Inc., Saleh Hasbun, Baypoint Mortgage, Inc., Westar Financial Gourp, Inc., Valley Trust Deed Services, Inc., and Melissa Hasbun’s Motion to Strike Curtis’s FAXC. The court, however, limited its ruling to striking the portions of the FAXC not related to O’Connor.

Curtis on October 19, 2017, filed eight Roe amendments adding the cross-defendants that this Court had ordered stricken from the FAXC.

This Court on November 17, 2017, overruled O’Connor’s Demurrer to the FAXC. This Court also sua sponte ordered Curtis’s October 19, 2017 amendments stricken.

This Court on October 2, 2018, granted O’Connor’s Motion for Leave to File Second Amended Complaint (“SAC”). The SAC alleges seven causes of action:

BREACH OF CONTRACT;

FRAUD AND DECEIT;

SPECIFIC PERFORMANCE;

QUIET TITLE;

DECLARATORY RELIEF; and

INJUNCTIONS

PARTITION

Curtis on January 2, 2018, filed a Notice of Appeal of this Court’s September 27, 2017 order striking certain defendants from Curtis’s FAXC.

On April 9, 2019, a Remittitur was issued denying Curtis’s appeal on the grounds that she had impermissibly appealed from an interlocutory order.

Curtis filed the present Motion for Leave to Add Nine Cross-Defendants on April 8, 2019.

Defendants Boostz and Baypoint filed an Opposition on June 5, 2019.

Discussion

MOTION FOR LEAVE TO AMEND A PLEADING

Code Civ. Proc. section 473 subd. (a)(1) provides:

The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.

“The trial court has discretion to permit or deny the amendment of the complaint, but instances justifying the court’s denial of leave to amend are rare.” (Armenta ex rel. City of Burbank v. Mueller Co. (2006) 142 Cal.App.4th 636, 642.)

“Although courts are bound to apply a 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 ‘[w]here no prejudice is shown to the adverse party . . .’ [Citation.] A different result is indicated ‘[w]here inexcusable delay and probable prejudice to the opposing party’ is shown. [Citation.]” (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487.)

Pursuant to California Rule of Court Rule 3.1324, “[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.”

The Court cannot grant Curtis’s motion, because it is procedurally defective. Curtis has not filed any proposed Second Amended Cross-Complaint or stated what amendments she proposes to make. Rather, she has submitted nine LACIV 105 “Amendment to Complaint” forms adding various defendants as Roes to her First Amended Cross-Complaint. The difficulty with this approach is that each of these defendants, with the exception of the proposed Roe 9, Charles Hasbun, is named as a defendant in Curtis’s operative FAXC, or was one before this Court ordered them stricken because Curtis twice attempted to add them without first seeking leave of court. Adding the Defendants as Roes in this manner creates difficulties in determining what precisely is alleged against whom, as Curtis’s proposed Roe configuration pairs defendants with causes of action that are not alleged against them in the FAXC. For instance, Westar is not a named defendant in the FAXC’s First Cause of Action, but adding Westar as Roe 5 as Curtis proposes here would add it as a defendant to this claim. There are no allegations presently pleaded against Charles Hasbun. In short, Curtis has given the Court no proposed pleading or any assurance that the addition of the proposed Roes would result in a coherent result.

Thus, if Curtis wishes to add these defendants to her Cross-Complaint, she must offer the Court a proposed pleading that identifies which claims are to be pleaded against which defendant, in addition to complying with the other procedural prerequisites described above.

Boostz’s and Baypoint’s objections to the motion primarily concern the legal sufficiency of the claims alleged, evidently based on application of the proposed Roe amendments to the operative FAXC. A court may, in its discretion, weigh the sufficiency of the claims in a proposed amendment to a pleading; however, “[t]he preferable practice [is] to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.)

Curtis’s Motion for Leave to Add Nine Cross-Defendants is therefore DENIED, without prejudice.

DATED: June 18, 2019 ________________________________

Hon. Robert S. Draper