This case was last updated from Los Angeles County Superior Courts on 08/17/2019 at 13:42:53 (UTC).

SEO BIN HONG VS CLAREMONT GRADUATE UNIVERSITY

Case Summary

On 09/17/2018 SEO BIN HONG filed a Contract - Other Contract lawsuit against CLAREMONT GRADUATE UNIVERSITY. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is WENDY CHANG. The case status is Disposed - Dismissed.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******1839

  • Filing Date:

    09/17/2018

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

WENDY CHANG

 

Party Details

Plaintiff and Appellant

HONG SEO BIN

Woodland Hills, CA 91364

Petitioner

JOHN L. DODD & ASSOCIATES PROF. CORP.

Defendants and Respondents

CLAREMONT GRADUATE UNIVERSITY

DDS LEGAL SUPPORT SYSTEMS INC.

Attorney/Law Firm Details

Plaintiff and Defendant Attorneys

MARIANO RHEA GERONIMO

Attorney at Epstein Becker & Green

1925 Century Park E Ste 500

Los Angeles, CA 90067

BRENNER JONATHAN MORRIS

Attorney at Epstein Becker & Green, P.C.

1925 Century Park E Ste 500

Los Angeles, CA 90067

Petitioner Attorney

DODD JOHN L

 

Court Documents

Appeal - Notice of Appeal/Cross Appeal Filed - Appeal - Notice of Appeal/Cross Appeal Filed

1/31/2019: Appeal - Notice of Appeal/Cross Appeal Filed - Appeal - Notice of Appeal/Cross Appeal Filed

Appeal - Notice of Default Issued - Appeal - Notice of Default Issued

2/4/2019: Appeal - Notice of Default Issued - Appeal - Notice of Default Issued

Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

2/5/2019: Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

Substitution of Attorney - Substitution of Attorney

2/19/2019: Substitution of Attorney - Substitution of Attorney

Appeal - Ntc Designating Record of Appeal APP-003/010/103 - Appeal - Ntc Designating Record of Appeal APP-003/010/103

2/28/2019: Appeal - Ntc Designating Record of Appeal APP-003/010/103 - Appeal - Ntc Designating Record of Appeal APP-003/010/103

Appeal - Notice of Default Issued - Appeal - Notice of Default Issued

3/4/2019: Appeal - Notice of Default Issued - Appeal - Notice of Default Issued

Appeal Document - Appeal Document Order granting electronic recording of trial proceedings for appeal filed 1/31/19

3/11/2019: Appeal Document - Appeal Document Order granting electronic recording of trial proceedings for appeal filed 1/31/19

Certificate of Mailing for - Certificate of Mailing for Minute Order (Ruling on Submitted Matter) of 01/09/2019

1/9/2019: Certificate of Mailing for - Certificate of Mailing for Minute Order (Ruling on Submitted Matter) of 01/09/2019

Minute Order - Minute Order (Ruling on Submitted Matter)

1/9/2019: Minute Order - Minute Order (Ruling on Submitted Matter)

Demurrer - without Motion to Strike - Demurrer - without Motion to Strike To Plaintiff's Complaint

10/29/2018: Demurrer - without Motion to Strike - Demurrer - without Motion to Strike To Plaintiff's Complaint

Request (name extension) - Request for interpreter

11/6/2018: Request (name extension) - Request for interpreter

Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

11/20/2018: Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

Reply (name extension) - Reply to plaintiff's opposition to demurrer

11/20/2018: Reply (name extension) - Reply to plaintiff's opposition to demurrer

Request for Judicial Notice - Request for Judicial Notice in support of reply to plaintiff's opposition

11/20/2018: Request for Judicial Notice - Request for Judicial Notice in support of reply to plaintiff's opposition

Challenge To Judicial Officer - Peremptory (170.6)

9/25/2018: Challenge To Judicial Officer - Peremptory (170.6)

Minute Order - (Court Order)

9/27/2018: Minute Order - (Court Order)

Summons - on Complaint

9/17/2018: Summons - on Complaint

Complaint

9/17/2018: Complaint

23 More Documents Available

 

Docket Entries

  • 07/23/2019
  • DocketAppeal Record Delivered; Issued by: Clerk

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  • 07/19/2019
  • DocketAppeal - Original Clerk's Transcript 1 - 5 Volumes Certified 1 VOL 156PAGES; Filed by: Clerk

    Read MoreRead Less
  • 06/28/2019
  • DocketAppeal - Clerk's Transcript Fee Paid RESPONDENT PAID $111.57; Filed by:

    Read MoreRead Less
  • 06/25/2019
  • DocketAppeal - Clerk's Transcript Fee Paid APPELLANT PAID $215.07; Filed by:

    Read MoreRead Less
  • 06/18/2019
  • DocketAppeal - Notice of Fees Due for Clerk's Transcript on Appeal BV032999; Filed by: Clerk

    Read MoreRead Less
  • 04/11/2019
  • DocketUpdated -- Appeal - Ntc Designating Record of Appeal APP-003/010/103: As To Parties: removed

    Read MoreRead Less
  • 04/10/2019
  • DocketAppeal - Ntc Designating Record of Appeal APP-003/010/103; Filed by: Seo Bin Hong (Plaintiff)

    Read MoreRead Less
  • 04/02/2019
  • DocketAppellate Order Granting Relief from Default NOA:1/31/19 BV032999; Filed by: Clerk

    Read MoreRead Less
  • 03/11/2019
  • DocketAppeal Document Order granting electronic recording of trial proceedings for appeal filed 1/31/19; Filed by: Clerk

    Read MoreRead Less
  • 03/08/2019
  • DocketAppeal - Notice Vacating Notice of Default; Filed by: Clerk

    Read MoreRead Less
34 More Docket Entries
  • 09/27/2018
  • DocketCase reassigned to Stanley Mosk Courthouse in Department 94; Reason: Challenge / Recusal

    Read MoreRead Less
  • 09/27/2018
  • DocketCertificate of Mailing for Minute Order (Court Order) of 09/27/2018; Filed by: Clerk

    Read MoreRead Less
  • 09/25/2018
  • DocketChallenge To Judicial Officer - Peremptory (170.6); Filed by: Seo Bin Hong (Plaintiff)

    Read MoreRead Less
  • 09/17/2018
  • DocketComplaint; Filed by: Seo Bin Hong (Plaintiff); As to: Claremont Graduate University (Defendant)

    Read MoreRead Less
  • 09/17/2018
  • DocketCivil Case Cover Sheet; Filed by: Seo Bin Hong (Plaintiff)

    Read MoreRead Less
  • 09/17/2018
  • DocketSummons on Complaint; Issued and Filed by: Clerk

    Read MoreRead Less
  • 09/17/2018
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

    Read MoreRead Less
  • 09/17/2018
  • DocketCase assigned to Hon. Wendy Chang in Department 94 Stanley Mosk Courthouse

    Read MoreRead Less
  • 09/17/2018
  • DocketNon-Jury Trial scheduled for 03/16/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94

    Read MoreRead Less
  • 09/17/2018
  • DocketOrder to Show Cause - Failure to File Proof of Service scheduled for 09/20/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94

    Read MoreRead Less

Tentative Rulings

Case Number: 18STLC11839    Hearing Date: August 03, 2020    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

SEO BIN HONG, etc.,

Plaintiff,

vs.

CLAREMONT GRADUATE UNIVERSITY, etc., et al.,

Defendants.

CASE NO.: 18STLC11839

[TENTATIVE] ORDER RE: MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT

Date: August 3, 2020

Time: 8:30 a.m.

Dept. 56

MOVING PARTY: Defendant Claremont Graduate University

RESPONDING PARTY: Plaintiff Seo Bin Hong

The Court has considered the moving, opposition, and reply papers.

BACKGROUND

On September 17, 2018, Plaintiff filed a complaint against Defendant asserting causes of action for: (1) fraud; (2) general negligence; and (3) intentional tort.

Defendant filed a demurrer to the first, second, and third causes of action in Plaintiff’s complaint. On January 9, 2019, the Honorable Jon R. Takasugi in Department 94 ruled on Defendant’s demurrer to the complaint and sustained the demurrer to the first, second, and third causes of action without leave to amend.

On January 31, 2019, Plaintiff appealed the Court’s January 9, 2019 ruling with respect to Defendant’s demurrer to the complaint. On appeal, Plaintiff only asserted that the court erred in sustaining the demurrer as to the fraud cause of action.

On February 20, 2020, the Appellate Division of this Court issued a remittitur with respect to Plaintiff’s appeal. The Appellate Division reversed the order sustaining Defendant’s demurrer to the complaint without leave to amend as to the fraud cause of action from which Plaintiff had appealed. The Appellate Division’s opinion indicated that “the demurrer was correctly sustained because plaintiff failed to satisfactorily allege fraud, but she is entitled to an opportunity to amend her complaint on remand.” (Opinion at 1:23-25.) The Appellate Division explicitly stated that “[a]s we determine the court erred in refusing to give plaintiff leave to amend to allege undue influence, we leave to the trial court to determine on remand whether plaintiff should also be given leave to amend to allege her new claim of promissory estoppel.” (Id. at 10:27-28.)

On March 5, 2020, Plaintiff filed the operative First Amended Complaint (“FAC”) arising from her alleged wrongful dismissal from Defendant’s educational institution. Plaintiff’s FAC alleges a single cause of action for: (1) rescission of contract—undue influence.

On July 9, 2020, the Court denied without prejudice Plaintiff’s motion for leave to file a Second Amended Complaint due to its procedural non-compliance with California Rules of Court, Rule 3.1324.

Pertinent Allegations of the FAC

The FAC alleges that: (1) on January 24, 2018, Plaintiff was dismissed from Defendant by Defendant’s Dean of Students and Campus Life, Quamina Carter (“Carter”) (FAC at ¶ 9); (2) prior to January 24, 2018, Plaintiff had never been subject to any academic discipline or placed on probation (Id.); (3) after being dismissed from Defendant, Plaintiff sought help from an attorney, James Kosnett (“Kosnett”) seeking to have her dismissal overturned (Id. at ¶ 10); (4) Kosnett wrote a letter to Carter, and Defendant’s attorney responded to Kosnett’s letter with a Confidential Withdrawal Agreement and General Release (the “Release”) (Id. at ¶ 10 and Exhibit A); (5) the Release provided that in lieu of being dismissed from the university, Defendant would allow Plaintiff to voluntarily withdraw from Defendant (Id. at ¶ 11); (6) in exchange, the Release required that Plaintiff release Defendant from any and all liability for any claims Plaintiff may have against Defendant relating to the “student-school relationship between [Plaintiff] and [Defendant]” and “[Plaintiff’s] recruitment to, enrollment in, or separation from [Defendant]” (Id.); and (7) Kosnett did not forward the Release to Plaintiff until February 13, 2018. (Id. at ¶ 12.)

The FAC further alleges that: (1) between the time when the Release was forwarded to Plaintiff on February 13, 2018 and Plaintiff signing the Release on February 15, 2018, Kosnett did not meet with Plaintiff in person and Kosnett was not available via telephone to discuss the contents of the Release and the consequences of signing the Release (Id.); (2) Plaintiff was an international graduate student attending Defendant, which is an educational institution (Id. at ¶ 6); (3) Kosnett never advised Plaintiff about the negative parts of the Release and the consequences of signing the Release (Id. at ¶ 12); (4) Plaintiff met with Carter on February 15, 2018, and Carter indicated that even if she signed the Release, Plaintiff would be able to use the appeals process to appeal her dismissal, and she would be able to apply for reinstatement at Defendant (Id. at ¶ 17); (5) Carter informed Plaintiff that if Plaintiff did not sign the Release by 4:00 p.m. on February 19, 2018, Carter would process Plaintiff’s dismissal (Id.); (6) Carter informed Plaintiff that if Plaintiff did not sign the Release, police officers could visit Plaintiff’s apartment for Plaintiff illegally staying in the United States after the expiration of Plaintiff’s visa (Id.); and (7) Carter’s statements were false and Carter knew them to be false at the time they were made in the meeting on February 15, 2018. (Id. at ¶ 18.)

The FAC also alleges that: (1) Carter concealed from Plaintiff that even if Plaintiff signed the Release, Defendant would terminate her SEVIS record which would preclude Plaintiff from transferring her SEVIS record to different institutions in the United States (Id. at ¶ 21); (2) thus, any possibility of Plaintiff continuing her education in the United States would be effectively eliminated (Id.); (3) Plaintiff did not understand the implications of the Release because no one ever adequately advised her of those implications (Id. at ¶ 23); (4) Carter misrepresented to Plaintiff the implications of signing the Release (Id.); and (5) due to signing the Release, Plaintiff was forced to leave the United States immediately, at her own expense, with no opportunity for appeal of her dismissal and no opportunity to seek enrollment at another university. (Id. at ¶¶ 25-28.)

Pursuant to the first cause of action in the FAC, Plaintiff alleges that: (1) Defendant and its agents, including Carter, had a fiduciary duty to provide correct information about the process to appeal disciplinary actions (Id. at ¶ 31); (2) Plaintiff placed trust and confidence in Defendant and its agents, including Carter, because Defendant was a reputable institution of higher education who held themselves out as acting for the benefit of their students (Id. at ¶ 32); (3) Plaintiff trusted the statement made by Carter about the SEVIS record because Defendant and its agents, including Carter, had a fiduciary duty to provide the correct information about the SEVIS record to its students (Id.); (4) as an institution of higher learning, Defendant and its agents, including Carter, were in a relationship of trust and confidence with its students such as Plaintiff (Id. at ¶ 31); and (5) Defendant and its agents were not discharged from their fiduciary duty to provide correct information. (Id. at ¶¶ 35-36.) Plaintiff also alleges that she suffered noneconomic damages in the form of distress after she learned that she was induced into signing the Release. (Id. at ¶ 41.)

The Instant Motion

Defendant filed a motion to strike portions of the FAC. Defendant seeks to strike: (1) Plaintiff’s allegations that Defendant owed Plaintiff a fiduciary duty; and (2) the allegations with respect to the recovery of damages in connection with emotional distress.

Defendant asserts that: (1) emotional distress damages are not recoverable for a rescission claim; and (2) Defendant owed no fiduciary duty to Plaintiff.

Plaintiff opposes Defendant’s motion. In opposition to Defendant’s argument that it owed Plaintiff no fiduciary duty, Plaintiff cites to Johnson and Alaimo. Johnson is a case from the United States District Court for the District of Connecticut. (Johnson v. Schmitz (2000) 119 F.Supp.2d 90.) The Johnson court analyzed plaintiff’s claim for breach of fiduciary duty under Connecticut law and not California law. (Id.) Alaimo is a case from the Supreme Court of Connecticut and does not mention California law. (Alaimo v. Royer (1982) 188 Conn. 36.) Out-of-state cases are not binding on this court. (Wilson v. Hinkle (1977) 67 Cal.App.3d 506, 511, fn.4.) The Court does not find Alaimo or Johnson as persuasive as neither Alaimo nor Johnson arise under or address California law. Although Plaintiff is representing herself in pro per, she is still held to the same standard as an attorney. (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.)

In connection with Defendant’s argument that Plaintiff cannot recover emotional distress damages for a rescission claim, Plaintiff’s opposition does not address Defendant’s contention with a reasoned argument or cite to legal authority to rebut Defendant’s argument on this point. (Opposition at 10:11-28.) The Court finds that Plaintiff has conceded to Defendant’s argument on this point because “[c]ontentions are waived when a party fails to support them with reasoned argument and citations to authority.” (Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215.)

MEET AND CONFER

The meet and confer requirement has been met.

DISCUSSION

California Code of Civil Procedure, Section 435 allows a party to file a motion to strike all or portions of a pleading. California Code of Civil Procedure, Section 436(a) allows a court to “[s]trike out any irrelevant, false, or improper matter inserted in any pleading.” California Code of Civil Procedure, Section 436(b) allows a court to “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”

Issue No.1: Existence of a Fiduciary Duty

“Whether a fiduciary duty exists is generally a question of law.” (Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1599.) “The mere placing of a trust in another person does not create a fiduciary relationship.” (Zumbrun v. University of Southern California (1972) 25 Cal.App.3d 1, 13.) “[A]n agreement to communicate one’s knowledge . . . does not create a trust but only a contractual obligation.” (Id.) “[T]he normal relationship between a student and the university and its agents is contractual. A bare allegation that defendants assumed a fiduciary relationship or that they entered into an educational joint venture with plaintiff are conclusions.” (Id.) There is no “fiduciary relation between the promisor or promisee and the beneficiary of a contract.” (Id.)

The Court incorporates the allegations of the FAC set forth above and applies such recitation to the analysis of whether Defendant owed a fiduciary duty to Plaintiff. Here, the Court finds that Plaintiff’s allegations in the FAC are merely conclusory allegations that a fiduciary relationship existed between Plaintiff and Defendant. Under Zumbrun, there was no fiduciary relationship between Plaintiff and Defendant. Moreover, given the lack of binding or persuasive authority in connection with the opposition thereto, Plaintiff’s opposition effectively concedes Defendant’s argument with respect to the lack of a fiduciary duty.

Therefore, the Court finds that Defendant’s did not owe Plaintiff a fiduciary duty.

Issue No.2: Emotional Distress Damages

In connection with a rescission claim “no damages may be awarded for pain and suffering.” (O’Neil v. Spillane (1975) 45 Cal.App.3d 147, 158.) “The general rule in California is that damages for mental suffering may not be recovered in an action for breach of an ordinary commercial contract.” (Kwan v. Mercedes-Benz of North America, Inc. (1994) 23 Cal.App.4th 175, 188.) “The rule against emotional distress damages . . . has been applied in California to bar such damages . . . in an action for rescission.” (Id.)

As indicated above, Plaintiff has conceded to Defendant’s argument on this point pursuant to Moulton.

Therefore, the Court finds that Plaintiff cannot recover emotional distress damages in connection with a rescission claim.

Issue No.3: Leave to Amend

Defendant contends that leave to amend should be denied because: (1) Plaintiff effectively concedes that she has no viable basis to assert she was owed a fiduciary duty; (2) the law is clear that emotional distress damages are not recoverable on a rescission claim; and (3) to the extent that Plaintiff seeks to retain the emotional distress allegations as part of a proposed new claim for negligent infliction of emotional distress, Plaintiff waived any such claim by failing to appeal her negligence cause of action in the original complaint. Plaintiff contends in the opposition that she would like to amend the FAC to allege additional causes of action for: (1) fraud in the inducement; (2) negligent misrepresentation; (3) promissory estoppel; (4) equitable estoppel; (5) negligent infliction of emotional distress; and (6) breach of contract.

“Great liberality is indulged in matters of amendment to the end that lawsuits may be determined upon their merits.” (Desny v. Wilder (1956) 26 Cal.2d 715, 751.) “Leave to amend should be denied where the facts are not in dispute and the nature of the claim is clear, but no liability exists under substantive law.” (Harshbarger v. City of Colton (1988) 197 Cal.App.3d 1335, 1349.)

The Appellate Division did not prohibit Plaintiff from seeking leave to assert additional causes of action. Plaintiff, however, did waive a cause of action for negligent infliction of emotional distress[1] because Plaintiff did not argue on appeal that her negligence claim asserted in the complaint was improperly sustained without leave to amend. (Brown v. Deutsche Bank National Trust Co. (2016) 247 Cal.App. 4th 275, 282.) Plaintiff contends that she can allege additional causes of action without defects. Plaintiff, however, has effectively conceded to Defendant’s arguments in connection with the motion to strike. While Plaintiff contends that she can allege additional causes of action without defects, Plaintiff presents no legal authority that she can sufficiently state facts to allege each cause additional cause of action.

Therefore, the Court GRANTS Defendant’s motion to strike portions of the FAC.

Moving party is ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by CourtCall if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 3rd day of August 2020

Hon. Holly J. Fujie

Judge of the Superior Court


[1] “[The] negligent causing of emotional distress is not an independent tort but the tort of negligence.” (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588.)

Case Number: 18STLC11839    Hearing Date: July 09, 2020    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

SEO BIN HONG, etc.,

Plaintiff,

vs.

CLAREMONT GRADUATE UNIVERSITY, etc., et al.,

Defendants.

CASE NO.: 18STLC11839

[TENTATIVE] ORDER RE: MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

Date: July 9, 2020

Time: 8:30 a.m.

Dept. 56

MOVING PARTY: Plaintiff Seo Bin Hong

RESPONDING PARTY: Defendant Claremont Graduate University

The Court has considered the moving and opposition papers. No reply papers were filed. Any reply papers were required to be filed and served at least five court days before the hearing on Plaintiff’s motion pursuant to California Code of Civil Procedure, Section 1005(b).

BACKGROUND

On September 18, 2018, Plaintiff filed a complaint against Defendant asserting causes of action for: (1) fraud; (2) general negligence; and (3) intentional tort.

Defendant filed a demurrer to the first, second, and third causes of action in Plaintiff’s complaint. On January 9, 2019, the Honorable Jon R. Takasugi in Department 94 ruled on Defendant’s demurrer to the complaint and sustained the demurrer to the first, second, and third causes of action in the complaint without leave to amend.

On January 31, 2019, Plaintiff appealed the Court’s January 9, 2019 ruling with respect to Defendant’s demurrer to the complaint. On February 4, 2019, the Court issued notice of filing of notice of appeal and indicated that: (1) Plaintiff had filed a notice of appeal on January 31, 2019; and (2) Plaintiff filed the appeal with the Appellate Division of this Court.

On February 20, 2020, the Appellate Division of this Court issued a remittitur with respect to Plaintiff’s appeal. The Appellate Division reversed the order sustaining Defendant’s demurrer to the complaint without leave to amend. The Appellate Division’s opinion indicated that “the demurrer was correctly sustained because plaintiff failed to satisfactorily allege fraud, but she is entitled to an opportunity to amend her complaint on remand.” (Opinion at 1:23-25.) On appeal, Plaintiff only asserted that the court erred in sustaining the demurrer as to the fraud cause of action. (Id. at 2:18-19.) The Appellate Division explicitly stated that “[a]s we determine the court erred in refusing to give plaintiff leave to amend to allege undue influence, we leave to the trial court to determine on remand whether plaintiff should also be given leave to amend to allege her new claim of promissory estoppel.” (Id. at 10:27-28.)

On March 5, 2020, Plaintiff filed the operative First Amended Complaint (“FAC”) arising from her alleged wrongful dismissal from Defendant’s educational institution. Plaintiff filed the FAC against Defendants alleging causes of action for: (1) rescission of contract—undue influence.

The Instant Motion

On April 21, 2020, Plaintiff filed a motion for leave to file a Second Amended Complaint. Plaintiff seeks to add six new causes of action to the Second Amended Complaint: (1) a second cause of action for rescission of contract—fraud in the inducement; (2) a third cause of action for negligent misrepresentation; (3) a fourth cause of action for promissory estoppel; (4) a fifth cause of action for equitable estoppel; (5) a sixth cause of action for negligent infliction of emotional distress; and (6) a seventh cause of action for breach of contract.

Defendant opposes Plaintiff’s motion for leave to amend on the grounds that: (1) the proposed Second Amended Complaint violates the Appellate Division’s order which imposed restrictions upon Plaintiff’s right to amend the complaint; (2) Plaintiff waived her right to pursue her negligence and intentional tort claims; (3) leave to amend should be denied for Plaintiff’s remaining claims as they are equally deficient; and (4) Plaintiff’s deficient declaration violates the California Rules of Court and does not support granting leave to file a Second Amended Complaint.

Plaintiff’s Declaration in Support of Her Motion

Plaintiff Seo Bin Hong (“Hong”) provides a declaration in support of her motion for leave to amend and declares that: (1) the effect of the Second Amended Complaint is to revise the first cause of action, undue influence, and to add six new causes of action all of which aredescribed in the memorandum (Hong Decl. at ¶ 1); (2) the second amended complaint is necessary because, without filing it, Plaintiff might be deprived of the opportunity to have her case decided on the merits (Id. at ¶ 2); (3) the proposed amendment is proper because Defendant will suffer no prejudice as a result of filing the Second Amended Complaint, and because when necessary the new causes of action relate back (Id.); (4) with respect to when the facts giving rise to the new causes of action were discovered, they were discovered during the process of ongoing legal research by Plaintiff with respect to her claim and how it might be prosecuted (Id. at ¶ 3); (5) this current round of research was completed in April 2020 following the research, the comprehensive review, and the analysis of the opinion of the Appellate Division (Id.); (6) this request for leave to file the Second Amended Complaint was not made earlier because Plaintiff had not completed the research, the review, and the analysis necessary to properly plead the new causes of action and to make changes to the existing complaint (Id. at ¶ 4); and (7) attached as Exhibit B is a true and correct copy of the opinion of the Appellate Division. (Id. at ¶ 5.)

DISCUSSION

California Code of Civil Procedure, Section 473 permits the trial court in its discretion to allow amendments to pleadings in the furtherance of justice. California Code of Civil Procedure, Section 576 says that “[a]ny judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.” “There is a policy of great liberality in permitting amendments to the pleadings at any stage of the proceeding.” (Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945.) “An application to amend a pleading is addressed to the trial judge’s sound discretion.” (Id.) “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” (Morgan v. Superior Court of Cal. In and For Los Angeles County (1959) 172 Cal.App.2d 527, 530.) “Where no prejudice is shown to the adverse party, the liberal rule of allowance prevails.” (Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564.) A judge may deny a motion for leave to amend where a plaintiff has been dilatory in seeking leave to amend and such delay has prejudiced defendant. (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.) Prejudice exists where amendment would: (1) cause a delay of trial; (2) increase preparation costs; (3) change the focus of the complaint; or (4) increase discovery burdens. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488.)

Issue No. 1: Procedural Non-Compliance

California Rules of Court, Rule 3.1324 sets forth the necessary requirements with respect to a motion to amend a pleading. California Rules of Court, Rule 3.1324(b) states that a separate declaration must accompany the motion for leave to amend and such declaration must specify: (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. In the context of a motion for leave to amend, the moving party must provide a declaration stating what new facts were discovered that gave rise to the motion for leave to amend. (Waxman v. Superior Court for Los Angeles County (1966) 246 Cal.App.2d 668, 671.)

The Court incorporates its recitation of Plaintiff’s declaration from above and applies it to the Court’s discussion of procedural non-compliance. Here, the declaration of Plaintiff does not state exactly what new facts were discovered. (Hong Decl. at ¶ 3.) Additionally, Plaintiff’s declaration only indicates that Plaintiff discovered facts giving rise to two new causes of action (Id.); however, the proposed Second Amended Complaint adds an additional six causes of action. Thus, Plaintiff does not state grounds for when she found out about the new facts giving rise to four of the six new proposed causes of action. Plaintiff’s declaration also fails to identify to which two new causes of action the new facts are applicable. Plaintiff’s declaration does not comply with the requirements set forth in Waxman or California Rules of Court, Rule 3.1324.

Due to the Court’s finding that Plaintiff’s declaration is deficient, the Court need not address the other arguments Defendant advanced in its opposition.

Therefore, the Court DENIES WITHOUT PREJUDICE Plaintiff’s motion for leave to file a Second Amended Complaint.

Moving party is ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by CourtCall if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 9th day of July 2020

Hon. Holly J. Fujie

Judge of the Superior Court

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