Case Number: KC065888    Hearing Date: July 29, 2014    Dept: J

Re: Po-Sheng Ko, etc. v. William C. Tseng, etc., et al. (KC065888)

MOTION FOR LEAVE TO AMEND TO FILE A FIRST AMENDED COMPLAINT TO ADD DEFENDANT EMILY LI FENG LIU, AND REQUEST FOR AN ORDER CONTINUING TRIAL

Moving Party: Plaintiff Po-Sheng Ko

Respondent: Defendant Johnny T. Tseng

In this action for fraud, Plaintiff alleges that Defendants fraudulently induced Plaintiff to pay $200,000 with the expectation of immigrating to the United States to serve as a professor and owner of Purlinton University. The Complaint, filed on 3/25/13, asserts causes of action for:

1. Fraud – Intentional Misrepresentation
2. Fraud – False Promise
3. Fraudulent Conveyance
4. Fraudulent Conveyance
5. Fraudulent Conveyance
6. Fraudulent Conveyance
7. Fraudulent Conveyance
8. Fraudulent Conveyance
9. Breach of Contract

FSC is set for 8/6/14. Trial is set for 8/19/14.

Plaintiff Po-Sheng Ko (“Plaintiff”) moves for leave to amend to file a First Amended Complaint (“FAC”) and an order continuing trial.

MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT:

Motions for leave to amend the pleadings are directed to the sound discretion of the judge. “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.

MOTION TO CONTINUE TRIAL:

A motion to continue trial is a disfavored motion. “To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain.” (CRC 3.1332.) The court may grant a continuance only upon an affirmative showing of good cause. CRC 3.1332(c) sets forth circumstances that may indicate good cause including: (1) Death; (2) Illness; (3) Unavailability of Attorney or Witness; (4) Substitution of Attorney; (5) Addition of a New Party; (6) Party’s Inability to Obtain Essential Discovery Despite Due Diligence; or (7) Significant Change in Status of Case. (CRC 3.1332(c).) The court should also consider all matters relevant to a proper determination of the motion, including the proximity of trial, previous continuances, the length of the continuance sought, alternatives, prejudice to parties or witnesses, preferential trial setting, the court’s calendar, trial counsels’ calendars, stipulations to continuances, the interests of justice, and any other relevant facts or circumstances. (CRC 3.1332(d).) “The court must look beyond the limited facts which cause a litigant to request a last-minute continuance and consider the degree of diligence his or her efforts to bring the case to trial, including participating in earlier court hearings, conducting discovery, and preparing for trial.” (Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1395, citing to Link v. Cater (1998) 60 Cal.App.4th 1315, 1324-1325.)

PLAINTIFF’S MOTION:

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 Emily Li Feng Liu (“Liu”) as a defendant. Plaintiff explains that her third cause of action alleges a fraudulent conveyance for property commonly known as 23407 Mane Drive, Diamond Bar, California 91765 (the “Property”) which was transferred in October 2012 from William Tseng to transferee Johnny Tseng, who is William Tseng’s son; Plaintiff subsequently discovered during the deposition of Johnny Tseng that an additional transferee of this property was Liu, who is William Tseng’s daughter; and that prior to the deposition of Johnny Tseng, Plaintiff had no way of knowing that Liu was William Tseng’s daughter, and therefore, was also an “insider” transferee as part of her third cause of action for fraudulent conveyance. (Motion, Chen Decl. ¶¶ 3-6, Exhs. A-D.)

Plaintiff, however, fails to explain why the request for amendment was not made earlier. Plaintiff is seeking to add Liu as a defendant based on information discovered during Johnny Tseng’s deposition on February 28, 2014. Plaintiff, however, did not file this motion until July 3, 2014, more than four months after the deposition.

Nevertheless, it appears that the amendment will resolve all disputed matters between the parties in the same lawsuit, and that Defendants will not be prejudiced by the proposed amendment. [Defendant Johnny Tseng does not oppose Plaintiff amending her complaint or naming new defendants in this action, so long as the trial of this action will go forward as scheduled.] Thus, motion for leave to amend to file a FAC to add Liu is granted. The proposed First Amended Complaint is deemed filed and served today upon those parties who have already appeared in the action. Counsel for Plaintiff is ordered to serve the new defendant within 7 days.

However, Plaintiff’s request to continue the trial for no less than 120 days is denied.

This is Plaintiff’s second request for a trial continuance. The trial in the matter was initially set for March 17, 2014. On February 27, 2014, Plaintiff’s ex parte application for an order continuing the final status conference and trial was granted. The ex parte application was made on the grounds that Plaintiff’s counsel was unavailable for trial due to the birth of their first child. (See 2/27/14 Ex Parte Application and Stipulation to Continue Trial.) The trial was set for August 19, 2014.

Further, despite knowing the facts surrounding her motion to amend since February 28, 2014, Plaintiff did not file her motion until July 1, 2014. Plaintiff, however, does not explain why she waited more than four months to bring this motion, on the eve of trial.

However, in the event new defendant Emily Li Feng Liu requests a continuance to prepare for trial, the court will grant that request.