Case Number: KC069408 Hearing Date: March 14, 2018 Dept: J

Re: Xin Song, et al. v. Leader Enterprises Co., Ltd., etc. (KC069408)

MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT

Moving Parties: Plaintiffs/Cross-Defendants Xin Song and Brian Su

Respondent: Defendant/Cross-Complainant, Leader Enterprises Co., Ltd. (erroneously sued herein as Leader Enterprises Co. Ltd. Inc.)

POS: Moving OK; Opposing OK; Reply OK

Plaintiffs seek to compel Leader Enterprises Co., Ltd.’s (erroneously sued herein as Leader Enterprises Co. Ltd. Inc.) (“defendant”) specific performance of a purchase and sale agreement relating to the residential property located at 2675 Broken Feather Lane in Diamond Bar. The complaint, filed 6/23/17, asserts causes of action against defendant and Does 1-30 for:

Specific Performance

Breach of Contract

On 7/13/17, defendant filed its cross-complaint, asserting causes of action against plaintiffs and Roes 1-50 for:

Breach of Written Contract

Declaratory Relief

On 9/27/17, the court granted defendant’s motion to expunge the lis pendens. A Case Management Conference is set for 3/14/18.

Plaintiffs Xin Song and Brian Su move the court for an order, per CCP §§ 473 and 576, granting them leave to file their proposed verified First Amended Complaint to delete their cause of action for specific performance, add causes of action for fraud, conspiracy to commit fraud, rescission, breach of fiduciary duty, negligence, negligent misrepresentation, unfair business practices and breach of implied covenant of good faith and fair dealing and to add Jolie Hong (“J. Hong”), Sharon Hong (“S. Hong”), Reliable R.E., Inc. (“Reliable”) and Anne Yang aka Jung Nan Yang (“Yang”) in as defendants. J. Hong and S. Hong are principals of Defendant Leader Enterprises Co., Inc., Reliable is the real estate broker that represented both parties and Yang is Reliable’s principal broker.

REQUEST FOR JUDICIAL NOTICE:

Defendant Leader Enterprises Co., Ltd.’s request for judicial notice is ruled on as follows: Grant as to Exhibits “1” and “2” (Complaint and plaintiff Su’s declaration) and deny as to Exhibit “3” (letter from plaintiffs’ former counsel).

“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 § 576. A motion for leave to amend 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. California Rules of Court (“CRC”) Rule 3.1324(a). Additionally, a separate declaration must accompany the motion and must specify (1) the effect of the amendment, (2) the reason why the amendment is necessary and proper, (3) the time when the facts giving rise to the amended allegations were discovered, and (4) the reasons why the request for amendment was not made earlier. CRC Rule 3.1324(b).

The motion reflects sufficient compliance with CRC Rule 3.1324(a). Counsel Tony Lu’s (“Lu”) declaration, however, does not reflect sufficient compliance with subsection (b). Lu states only that he “came into this Action in December 2017,” that he sent the proposed FAC to defendant’s counsel James Klinkert and Paul Gutierrez (“Gutierrez”) in 1/18 and requested that they stipulate to the filing of same, that Gutierrez advised him on 1/23/18 that he would not stipulate, that the proposed FAC now contains nine causes of action (identified above) and adds four new defendants, and that “[b]ased on [his] review of the pleadings and analysis of the facts, naming additional parties is necessary to ensure the administration of fairness, and asserting additional causes of action will then accord adequate relief to Plaintiffs.” (Lu Decl., ¶ 13). Lu does not explain why the amendment is necessary and proper.

Accordingly, the motion is denied without prejudice.