Case Number: KC066279    Hearing Date: August 08, 2014    Dept: J

Re: Hiromasa Yoshino v. John Speidel (KC066279)

MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT

Moving Party: Plaintiff Horomasa Yoshino

Respondent: Defendant John Speidel

POS: Moving OK; Opposing served by regular mail contrary to CCP § 1005(c)

Plaintiff seeks recovery of $40,000 paid to Defendant based on theories of conversion, money had and received, fraud, and breach of written contract. Plaintiff alleges that he entered into a written retainer agreement with Defendant for legal services and paid him $40,000.00. Defendant, however, was never licensed to practice law, never performed, and never was able to provide legal services to Plaintiff. The Complaint, filed on 8/27/13, asserts causes of action for:

1. Conversion
2. Common Count – Money Had/Received
3. Fraud
4. Breach of Written Contract

The trial is set for 12/15/14.

Plaintiff Hiromasa Yoshino (“Plaintiff”) moves for an order allowing Plaintiff to file a First Amended Complaint (“FAC”) in order to add two causes of action. The proposed amendment adds a Fifth Cause of Action for Violation of Bus & Prof C § 6125, et seq. and a Sixth Cause of Action for Violation of Bus & Prof C § 22440, et seq. The motion is made on the ground that the amendment is in furtherance of justice in that Plaintiff has the the right to recover his property and damages, plus attorneys’ fees and costs under these statutes, and such right should not be forfeited because of the oversight, inadvertence, mistake, and/or neglect of his counsel.

Motions for leave to amend the pleadings are directed to the sound discretion of the court. “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading…” (CCP § 473(a)(1); and see CCP § 576.) Judicial policy favors resolution of all disputed matters between the parties in the same lawsuit. Thus, the court’s discretion will usually be exercised liberally to permit amendment of the pleadings. (See Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) Failure to grant leave to amend may amount to an abuse of discretion, where the parties will not be misled or prejudiced by the amendment. (Kittredge Sports Co. v. Sup. Ct. (1989) 213 Cal.App.3d 1045, 1048.) 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,” absent prejudice to the adverse party. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.)

Under California Rules of Court, Rule 3.1324(a), 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.

Under California Rules of Court, Rule 3.1324(b), a separate declaration must accompany the motion to amend a pleading specifying the following: (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.

Plaintiff has substantially complied with the requirements of CRC 3.1324. A copy of the proposed FAC is submitted with the moving papers. Plaintiff is seeking to amend the Complaint to add a Fifth Cause of Action for Violation of Bus & Prof C § 6125, et seq. and a Sixth Cause of Action for Violation of Bus & Prof C § 22440, et seq. Counsel for Plaintiff explains that the proposed amendment is necessary and proper in that Plaintiff has the right under the express provisions of these statutes to recover his property, actual and treble damages, attorneys’ fees and costs, from Defendant. (Motion, Kajioka Decl. ¶ 5.) Counsel attests that he discovered these causes of action during his preparation of the trial brief and discussion with his client in preparation for the trial; and that he mistakenly believed that he can make an oral motion to amend to conform to the proof at trial. (Id. ¶¶ 6-8.)

Defendant, in opposition, contends that the amendments are not based on the same set of facts and that they are barred by the statute of limitations. However, the proposed FAC is based on the same general set of facts pleaded in the original Complaint, i.e., Plaintiff retained Defendant to provide legal services to Plaintiff so that Plaintiff could obtain a U.S. permanent resident status by filing an immigration application through the immigrant investor program known as EB-5 (Complaint ¶ 5; FAC ¶ 5); Plaintiff paid $40,000 to Defendant (Complaint ¶ 6, FAC ¶ 6); Plaintiff sought a second opinion about his application and learned that it was unlawful and illegal for Plaintiff to apply for a Green Card under the EB-5 Program (Complaint ¶ 9; FAC ¶ 9); Defendant intentionally concealed the fact that it would be done by unlawful means (Complaint ¶ 10; FAC ¶ 10); Plaintiff instructed Defendant not to continue the EB-5 application and demanded the refund of $40,000 that he had paid (Complaint ¶ 11; FAC ¶ 11); but that Defendant refused to pay back the money claiming that it was non-refundable (Complaint ¶ 12; FAC ¶ 12).

Moreover, subject to certain limitations, the court has discretion to permit any sort of amendment; i.e., the amendment need not relate to the claims or defenses originally pleaded. Thus, amended pleadings may set forth entirely different claims, add new parties, seek a different or greater remedy, etc. Further, there is a right to amend “to correct inadvertent misstatements of facts or erroneous allegations of terms.” (Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945.)

Defendant, in “SUR REPLY” withdraws his objection based on statute of limitations.

It appears that the amendment will resolve all disputed matters between the parties in the same lawsuit, and that Defendant will not be prejudiced by the proposed amendment as there is time remaining to conduct further discovery if necessary. The motion is granted. The proposed First Amended Complaint is deemed filed and served this date.