30-13-644642
Motion for Leave to File Fifth Amended Complaint
Our Supreme Court has stated:
“A complaint should be kept to reasonable length, and plaintiffs’ fourth amended complaint, 64 pages long, strains at that limit. Yet plaintiffs allege thousands of misrepresentations in various media over a span of four years—representations which, while similar in substance, differ in time, place, and detail of language and presentation. A complaint which set out each advertisement verbatim, and specified the time, place, and medium, might seem to represent perfect compliance with the specificity requirement, but as a practical matter, it would provide less effective notice and be less useful in framing the issues than would a shorter, more generalized version.”
Committee On Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 217, superseded by statute on other grounds as stated in Californians For Disability Rights v. Mervyn’s, LLC (2006) 39 Cal.4th 223, 227.
Here, at 40 pages with 15 causes of action, Plaintiffs’ proposed amended complaint is an unwieldy, rambling document. It is cumbersome for the Court to read.
Plaintiffs now propose extensive additions and changes.
It appears that most of the amendments are unnecessary and repetitive of existing allegations in the 4th AC. For example, the proposed changes to Paragraphs 16 and 17 on page 7 of the proposed 5th AC are unnecessary as the allegations are already included in Paragraph 74 on pages 24-26 for which recovery is sought against the same defendant, Ning Yen.
The proposed amendment of Paragraph 74 (p. 27, lines 4 to 9 in 5th AC) regarding Santa Ana Packaging is unnecessary because the allegations already exist in the 4th AC, as reflected on page 6, lines 4 to 13 of the proposed pleading.
Similarly, the amendments on p. 29, lines 5 to 13, are already found on page 6, in Paragraph 16. The allegations are even incorporated by reference into subsequent causes of action, see Kajima Engineering and Const., Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 931-32. A substantial part of the proposed amendments seem to be entirely unnecessary.
Plaintiffs also propose adding defendant Moon Yen to the 12th cause of action on the grounds that this defendant made the purported lease with plaintiff QFSM. However, they have already alleged that defendant Moon Yen is the agent and the alter ego of all other defendants. Plaintiffs have directly alleged Moon Yen created the “fraudulent” lease. (See allegations from 4th AC, as set forth in the proposed 5th AC at paras. 14-15, 24, 40, 98-100). Accordingly, these proposed amendments are redundant of existing allegations.
Plaintiffs and/or their counsel demonstrate an unrelenting drive to allege each and every detail of the case in the complaints. This seems to miss the point. A complaint is sufficient if it sets forth essential facts to state a claim and acquaints the defendant with the nature and extent of the cause of action. The plaintiff need not allege all of the evidence to support the claims. Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550. Each evidentiary fact that might eventually form part of the plaintiff’s proof is not necessary to include in a pleading. C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.
An example of this unnecessary pleading of facts is the proposed amendment to Paragraph 21. Plaintiffs propose adding excruciating details of alleged misrepresentations by Ning Yen. Such a level of detail is unnecessary, as the Court has already ruled on demurrer that the cause of action was sufficiently plead. The details to be added are fairly read as included within the allegations in paragraph 23 on page 10, which alleges the same information in less detail. As a practical matter, alleging every single misrepresentation in excruciating detail can make the pleading less effective and less useful. See Committee On Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 217.
The Court has discretion to deny leave to amend also, if the proposed amendment fails to state a claim or is substantively defective. Soderberg v. McKinney (1996) 44 Cal.App.4th 1760, 1773. Of the myriad amendments which Plaintiffs propose here, some overtly lack merit, e.g., the proposed added claim for punitive damages in the 3rd C/A for negligent misrepresentation fails as a matter of law. (See proposed 5th AC, para. 48). “[I]t is well settled that punitive damages are not recoverable for negligent misrepresentation.” PM Group, Inc. v. Stewart (2007) 154 Cal.App.4th 55, 69.
With respect to the proposed common count for money lent and claim for breach of oral contract against Ning Yen, these claims apparently stem from the $300,000 which he is said to have received from QFSM as a loan. However, this is already the subject of the existing claim for breach of fiduciary claim against Ning Yen which is brought to recover for the same apparent sum that was loaned, $300,000. (See allegations in para. 74 of 4th AC as set forth in proposed 5th AC at 24:23 – 25:6). Thus, the amendment appears unnecessary.
Moreover, a common count is not a specific cause of action; it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness. It is often used as an alternate way of seeking the same recovery demanded in a specific cause of action. McBride v. Boughton (2004) 123 Cal.App.4th 379, 394. Plaintiffs are already pursuing such a recovery in the breach of fiduciary claim, as noted.
Plaintiffs did not adequately explain their failure to raise these extensive changes sooner in the case. The case has been pending for one year. The policy of liberal amendment of pleadings is not limitless.
“The trial court has wide discretion in allowing the amendment of any pleading, and as a matter of policy the ruling of the trial court in such matters will be upheld unless a manifest or gross abuse of discretion is shown. Nevertheless, it is also true that courts generally should permit amendment to the complaint at any stage of the proceedings, up to and including trial. But this policy applies only where no prejudice is shown to the adverse party. Moreover, even if a good amendment is proposed in proper form, unwarranted delay in presenting it may – of itself – be a valid reason for denial. Thus, appellate courts are less likely to find an abuse of discretion where, for example, the proposed amendment is offered after long unexplained delay or where there is a lack of diligence.
Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 175 [citations and quotations omitted].
It has also been said: “The plaintiffs were permitted to file three amended complaints. Under the circumstances stated, it was not an abuse of discretion to deny leave to file a fourth amended complaint…. The trial was commenced in March, 1925. The original complaint, filed January 4, 1924, set forth the addendum contract in full.” Drew v. Lindsay Nat. Bank (1927) 88 Cal.App. 60, 65. See also Whittemore v. Davis (1931) 112 Cal.App. 702, 709 (“A plaintiff may not, without limit, replead after demurrer sustained. In this case another amended complaint would have been a fourth attempt to state a cause of action. The trial court was well within its discretion when it determined that, if appellants could not present a cause of action in the third attempt, the limit had been reached.”).
Here, Defendants legitimately contend that the extent of Plaintiffs’ changes are not “minor”. They are extensive and would create additional discovery burdens on the defendants. The proposed 15th cause of action, for example, is based on entirely new facts which Defendants argue will necessitate re-opening completed discovery, such as Plaintiff’s deposition. (See Opp., Wong Decl. paras. 1 to 9). Plaintiff has not adequately explained the failure to seek relief sooner in light of the allegation that the alleged “lock-out” occurred in January 2013, over 12 months ago, a fact which must have been within his knowledge. (See Prop. 5th AC, p. 40, paras. 118-19 and Moving Liu Decl. para. 3) The explanation in the reply, that Plaintiff Liu could not “communicate” with his prior counsel is not a valid reason or explanation for the lengthy delay.
Denial of the motion could be without prejudice to Plaintiffs’ bringing a motion at trial to amend the pleading to conform to proof. Where a party is allowed to prove facts to establish one cause of action, an amendment which would allow the same facts to establish another cause of action is favored, and a trial court abuses its discretion by prohibiting such an amendment when it would not prejudice another party. South Bay Building Enterprises, Inc. v. Riviera Lend-Lease, Inc. (1999) 72 Cal.App.4th 1111, 1124. Amendments to conform to proof may be allowed to include a new plaintiff to conform to the evidence presented at trial as well as reach other variances between the pleading and evidence. Pellegrini v. Weiss (2008) 165 Cal.App.4th 515, 527.
For these reasons, the recommendation is to deny leave to file a 5th amended complaint.
Had Plaintiffs shown restraint and been reasonable or selective in proposing amendments, the recommendation might have been different. However, there are too many amendments sought by Plaintiffs for the Court to readily parse through each and every one to determine what might have been proper if separately presented.
Deny Plaintiffs’ Motion for Leave to file a Fifth Amended Complaint, without prejudice to amendment to conform to proof at trial.
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