18-CIV-03789 THEODORE RILEY, ET AL. VS. AKIL HASHIM KHALID, ET AL.

THEODORE RILEY AKIL HASHIM KHALID
CARY KLETTER

MOTION FOR LEAVE TO FILE AMENDED COMPLAINT/ANSWER BY THEODORE RILEY, THEODORE RILEY, TRUSTEE OF THE THEODORE F. RILEY AND IRENE G. RILEY FAMILY TRUST TENTATIVE RULING:

Plaintiffs Theodore Riley et. al.’s Motion for Leave to File First Amended Complaint (FAC) is GRANTED. Code Civ. Proc. §§ 473(a)(1), 576. The Court’s policy with respect to amending pleadings is liberal, particularly where, as here, the case is in its early stages. The issues/arguments Defendants assert in their Opposition papers are more appropriately raised in their response to the amended pleading (whether by Demurrer or otherwise); they are not grounds for the Court to deny leave to amend. Defendants will have the opportunity to challenge the validity of the amended pleading.

Plaintiffs may file amended Complaint within 10 days of this Order. The proposed FAC submitted with the moving papers is not deemed filed by virtue of this Order. Further, Plaintiffs need not file a FAC in the exact form submitted with the moving papers, but instead may make whatever changes they deem appropriate in order to address the issues/arguments raised by Defendants in the Opposition papers. For example, Defendants are correct that the Trust itself, as distinguished from the Trustee, lacks capacity to sue. Portico Mgmt. Group., LLC v. Harrison, 202 Cal.App.4th 464, 473 (2011). Further, the proposed FAC continues to name Ellen Zawacki as a Defendant, despite her having been dismissed. See 10-25-18 Request for Dismissal. Plaintiff may want to address these issues prior to filing.

The Court declines to strike the Kletter declarations. The 11-26-18 declaration appears to amend/replace the 11-19-18 declaration. And no formal objection to either declaration has been filed.

Defendants’ Request for Judicial Notice is GRANTED as the Exhibits 1-4 (Evid. Code § 452(c)) and Exhibits 5-8 (Evid. Code § 452(d)). Judicial Notice is taken as to their filing and recording dates, and their contents, but not as to the truth of any statements/allegations therein.