Case Number: BC582745 Hearing Date: April 27, 2021 Dept: 47
Judge Theresa M. Traber, Department 47
HEARING DATE: April 27, 2021 TRIAL DATE: June 28, 2021
CASE: Yajac Agriculture, LLC v. Mark Epstein, et al.
CASE NO.: BC582745
MOTION FOR LEAVE TO FILE FIRST AMENDED/SUPPLEMENTAL CROSS-COMPLAINT
MOVING PARTY: Defendant/Cross-Complainant Mark Epstein
RESPONDING PARTY(S): Cross-Defendants Yajac Agriculture, LLC, Uzzi Reiss, Jacob Reiss, and Yael Reiss
• 05/22/15: Complaint filed.
• 11/13/15: First Amended Complaint filed.
• 03/29/16: Second Amended Complaint filed.
• 10/11/16: Third Amended Complaint filed.
• 03/08/17: Cross-Complaint filed (without leave of court).
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
This is a dispute regarding Defendants’ obligation pertaining to the operation of a limited liability company established to cultivate marijuana.
Defendant Marc Epstein filed a Cross-Complaint alleging that Cross-Defendants acted to exclude Cross-Complainant from the LLC owned by Cross-Complainant and Cross-Defendants to farm medical marijuana and took money and product that belonged to the LLC. Cross-Complainant seeks to enforce his 25% member’s share of the LLC’s net profits.
Defendant/Cross-Complainant Marc Epstein moves for leave to file a first amended/supplemental cross-complaint.
Defendant/Cross-Complainant Marc Epstein’s motion for leave to file first amended/supplemental cross-complaint is DENIED without prejudice.
Motion for Leave to File First Amended/Supplemental Cross-Complaint
Cross-Complainant Marc Epstein seeks leave (1) to amend his cross-complaint, and (2) to supplement his cross-complaint.
Leave to File Amended Cross-Complaint
Cross-Complainant seeks leave to amend the cross-complaint to delete certain causes of action, add certain causes of action, and “consolidate and amend the actionable facts . . . in a unified predicate fact section.” (Motion at unnumbered p. 3.)
The Court may, “at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, . . . allow the amendment of any pleading.” (CCP § 576.) A motion to amend a pleading before trial must meet the following requirements:
(a) Contents of motion
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.
(b) Supporting declaration
A separate declaration must accompany the motion and 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.
Contents of Motion
Cross-Complainant has included a copy of the proposed first amended/ supplemental cross-complaint with this motion, as required by CRC 3.124(a)(1).
Cross-Complainant has not, however, stated which allegations he proposes to delete or add and where, by page, paragraph, and line number, as required by CRC 3.124(a)(2)-(3). A vague statement that the proposed pleading “consolidates and amends the actionable facts from the original cross-complaint” (¶¶ 10-25) in a “unified predicate fact section” (¶¶ 13-100) is insufficient. (Motion, at unnumbered p. 2.) Thus, the contents of the motion do not comply with CRC 3.124(a).
The Declaration of Attorney Miles Carlsen accompanying the motion does not explain when the facts giving rise to the amended allegations were discovered and why the request for amendment was not made earlier, as required by CRC 3.124(b)(3) and (4). The declarant asserts that his “assessment is that the operative facts remain the same,” but he also refers to “additional facts that provide context for the facts alleged in the original cross-complaint.” (Carlsen Decl. ¶ 3.) As to these facts, the declarant explains only that “[d]iscovery and investigation over the past four years” uncovered them. (Ibid.) There is no explanation of why the request for amendment based on these additional facts was not made earlier nor any attempt to identify which new facts were discovered when.
Nor does the declaration explain why the amendment is necessary and proper, as required by CRC 3.124(b)(2). The declaration indicates only that reframing the original seventeen causes of action as eight causes of action is “in the interest of efficiency and conservation of resources.” (Carlsen Decl. ¶ 3.) This does not explain why new and different causes of action are necessary and proper, and the proposed amended cross-complaint does not merely eliminate nine causes of action; it eliminates eleven causes of action and adds others in place of some of the eliminated causes of action, and the latter is not explained in the declaration. Nor does the declaration state the effect of the amendments in full, as required by CRC 3.124(b)(1). Thus, the Court finds that the supporting declaration does not satisfy the requirements of the rule.
In his reply, Cross-Complainant states that Cross-Defendant’s reference to CRC 3.124 ignores that “it was their misconduct in this case that gave rise to a proposed pleading in the first place.” (Reply, at p. 4.) Another party’s alleged misconduct does not justify the moving party’s failure to comply with the rule applicable to amended pleadings.
Accordingly, the motion for leave to file an amended cross-complaint is DENIED, without prejudice to filing a motion to complies with CRC 3.124.
Leave to Supplement Cross-Complaint
Cross-Complainant also seeks to supplement the cross-complaint to allege “actionable facts that have occurred since July 2020.” (Motion, at unnumbered p. 8.)
On motion, a party may “make a supplemental complaint . . . alleging facts material to the case occurring after the former complaint.” (CCP § 464(a).)
[T]echnically an amended complaint will supersede the original complaint unless there is something in the former showing that it is to be considered merely an amendment to the complaint and a “supplementary” complaint is supposed to deal only with facts arising subsequently to the filing of the original complaint and has nothing to do with amendment to conform to the proofs.
(Nels E. Nelson, Inc. v. Tarman (1958) 163 Cal.App.2d 714, 720, bold emphasis added.)
As with a motion to amend a pleading, a motion to supplement a pleading must comply with CRC 3.1324(b). (Weil & Brown, Cal. Prac. Guide Civ. Pro. Before Trial (The Rutter Group 2021) § 6:812, p. 6-E. Here, as noted above, Cross-Complainant has included a copy of the proposed first amended/supplemental cross-complaint with this motion, as required by CRC 3.124(a)(1). Cross-Complainant also appears to propose to add Paragraphs 85 to 99 and not to delete any paragraphs in connection with the supplemental pleading, thus complying with CRC 3.124(a)(2)-(3).
The Declaration of Attorney Miles Carlsen accompanying the motion appears to state that the facts giving rise to the amended allegations were discovered “in the latter part of 2020” (Carlen Decl. ¶ 5), as required by CRC 3.1324(b)(3), but does not explain why the request for amendment was not made earlier, as required by CRC 3.124(b)(4). Nor does the declaration explain why the amendment is necessary and proper, as required by CRC 3.124(b)(2). Nor does the declaration state the effect of the amendments in full, as required by CRC 3.124(b)(1). Thus, the Court finds that the supporting declaration does not satisfy the requirements of the rule.
Also, as with amended pleadings, a motion to file supplemental pleadings is addressed to the sound discretion of the court. (Louie Queriolo Trucking, Inc. v. Superior Court (1967) 252 Cal.App.2d 194, 197.) A supplemental pleading cannot, however, allege “new” causes of action or defenses. The purpose of supplementing a complaint is not to seek a new cause of action, but to address later instances of the same conduct. (Jaffa v. Guttman (1959) 175 Cal.App.2d 790, 798.)
It is the general policy that courts should exercise liberality in permitting the filing of supplemental pleadings when the alleged “occurring-after” facts are pertinent to the case. (Code Civ. Proc., § 464; People ex rel. Dept. Pub. Wks. v. Douglas, 15 Cal.App.3d 814 [93 Cal.Rptr. 644]; Louie Queriolo Trucking, Inc. v. Superior Court, 252 Cal.App.2d 194, 197-198 [60 Cal.Rptr. 389].) Nonetheless, the motion to file a supplemental pleading is addressed to the sound legal discretion of the court, and its ruling will not be disturbed on appeal in the absence of a showing of a manifest abuse of that discretion. (Wood v. Brown, 39 Cal.App.3d 232, 239-240 [114 Cal.Rptr. 63]; Louie Queriolo Trucking, Inc. v. Superior Court, supra; Erickson v. Boothe, 127 Cal.App.2d 644 [274 P.2d 460].) There is no such showing in the instant case.
(Flood v. Simpson (1975) 45 Cal.App.3d 644, 647, bold emphasis added.)
Here, the original cross-complaint was filed on March 8, 2017. Cross-Complainant proposes to add Paragraphs 85 to 99 to the cross-complaint, most of which allege events occurring in 2019 and later. However, given that these factual allegations are divorced from any particular cause of action, the Court cannot determine whether these allegations relate to one of the unidentified new causes of action in the proposed pleading or an existing cause of action. A supplemental pleading is only proper if the new allegations supplement an existing cause of action. (Flood, supra, 45 Cal.App.3d at 647.) Cross-Complainant’s decision to “consolidate” the facts has also made it impossible for the Court to determine whether he seeks to add new causes of action (as part of this motion to supplement) or merely supplement existing causes of action with new facts.
Accordingly, the motion is DENIED, without prejudice to filing a motion that complies with CRC 3.124 and that makes clear which cause(s) of action is/are being supplemented by the new facts.
Moving party to give notice, unless waived.
IT IS SO ORDERED.
Dated: April 27, 2021 ___________________________________
Theresa M. Traber
Judge of the Superior Court
Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.