Case Number: BC502563 Hearing Date: June 06, 2014 Dept: 58

JUDGE ROLF TREU
DEPARTMENT 58
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Hearing Date: Friday, June 6, 2014
Calendar No: 8
Case Name: Shut, et al. v. Shut, et al.
Case No.: BC502563
Motion: (1) Demurrer and Motion to Strike
(2) Motion for Leave to File Second Amended Cross-Complaint
Moving Party: (1) Cross-Defendants Elvira Shut and Lennox Jewelry & Loan, Inc.
(2) Cross-Complainants Jacks Jewelry Loan Corporation and Lennox Enterprise Inc.
Responding Party: (1) Cross-Complainants
(2) Cross-Defendants.
Notice: OK

Tentative Ruling: Motion for leave to file Second Amended Cross-Complaint is granted. SACC to be filed within 10 days Demurrer is overruled; motion to strike is denied. Cross-Defendants Elvira Shut and Lennox Jewelry & Loan, Inc. to answer within 20 days.
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Background –
On 3/8/13, Plaintiffs Elvira Shut (referred to by the parties as “Ella” but referred to herein as “Elvira”) and Lennox Jewelry & Loan, Inc. filed this action against Defendants Jack Shut, Jacks Jewelry Loan Corporation dba and/or aka Jack’s Pawn Shop (“Jacks Jewelry”), and Bertha Coronado arising out of alleged conduct taken to interfere with Plaintiffs’ business.

On 4/9/13, Jack, in propria persona, filed a cross-complaint against Plaintiffs asserting causes of action for (1) intentional infliction of emotional distress, (2) negligent infliction of emotional distress, (3) slander and/or slander per se, (4) abuse of process, and (5) negligent interference with prospective economic relations. On 6/20/13, Jack dismissed the cross-complaint without prejudice.

On 11/18/13, the Court granted a motion for judgment on the pleadings filed by Jack and Jacks Jewelry with leave to amend. On 12/3/13, Plaintiffs filed the operative First Amended Complaint which asserts causes of action for (1) intentional tort, (2) unfair business practices, (3) unfair competition, (4) intentional infliction of emotional distress, (5) negligent infliction of emotional distress, (6) misappropriation of trade secrets, (7) slander and/or slander per se, (8) tortious interference with contract and/or business relationships, and (9) breach of written contract. The 1st, 2nd, 5th, and 7th through 9th COAs are asserted by Lennox Jewelry; the 3rd and 4th COAs are asserted by Elvira; and the 6th COA is asserted by both Plaintiffs.

On 12/16/13, Jacks Jewelry filed a cross-complaint against Plaintiffs and Ike Properties, Inc. asserting claims for unfair competition and unfair business practices. On 1/28/14, Plaintiffs filed a demurrer and a motion to strike as to Jack Jewelry’s Cross-Complaint. On 3/10/14, Jacks Jewelry filed a First Amended Cross-Complaint which added Lennox Enterprises as a Cross-Complainant and asserts a claim for unlawful and unfair business practices.

On 3/28/14, Jacks Jewelry voluntarily dismissed Ike Properties from its FACC without prejudice. On 4/2/14, the Court granted Plaintiffs’ ex parte application to continue trial and related dates. Trial is set for 10/20/14; FSC for 10/9/14.

Motion for Leave to File Second Amended Cross-Complaint –
Jacks Jewelry requests leave to file a Second Amended Cross-Complaint to correct the name of Lennox Enterprise Inc.: the proper designation of Lennox Enterprise is the subject of Plaintiffs’ demurrer.

“In furtherance of justice,” the Court may permit amendment of any pleading on such terms as may be proper. See CCP §§ 473(a), 576. While the Court has discretion to permit or deny amendment of a complaint, denial of leave to amend is rare. Armenta ex rel. City of Burbank v. Mueller Co. (2006) 142 Cal.App.4th 636, 642. The Court may deny leave to amend after long, inexcusable delay, where there is prejudice, such as where new issues would require further discovery. Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761. Absent prejudice, delay alone is not sufficient to deny leave to amend. See Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-65.

The Court notes that the proposed SACC is responsive in part to Plaintiffs’ demurrer. Farinpour Decl. ¶¶ 4-7. The motion complies with CRC 3.1324. Therefore, the motion is granted.

Demurrer and Motion to Strike –
In light of the Court’s ruling on the motion for leave to file an amended cross-complaint, Plaintiffs’ demurrer and motion to strike are moot. Nevertheless, reviewing the arguments made by Plaintiffs, Plaintiffs motions improperly attempt to dispute the factual allegations of the cross-complaint at the pleading stage by arguing that Jacks Jewelry is not lawfully operating a pawn shop business and whether the restitution and injunctive relief remedies can be established. These are not properly raised at the pleading stage. Therefore, although moot, the Court will overrule the demurrer, deny the motion to strike, and order Plaintiffs to file an answer to the SACC.