FUTANG JI VS PUNTA GORDA ACQUISITIONS, LLC

Tentative Rulings

Case Number: *******0974 Hearing Date: June 23, 2022 Dept: 3

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTHEAST DISTRICT

DEPARTMENT 3

MOVING PARTIES: Plaintiffs Futang Ji, Fan-Ling Wen, Yi-Ching Wu, Mingde Zheng, and Yong Zong

RESPONDING PARTIES: Defendants Punta Gorda Senior Living, LP and GT Madison Realty, LLC

Motion for Leave to File Second Amended Complaint

The court considered the moving papers, opposition, and reply papers filed in connection with this motion.

BACKGROUND

Plaintiffs Futang Ji, Fan-Ling Wen, Yi-Ching Wu, Mingde Zheng, and Yong Zong are five foreign EB-5 investors who each invested $500,000 for the purpose of expanding a senior living facility in Punta Gorda, Florida. The initial complaint was filed on July 27, 2021, and the operative First Amended Complaint (“FAC”) was filed on January 11, 2022. The FAC asserts causes of action for (1) money had and received, (2) negligence, (3) unjust enrichment, (4) fraud, and (5) accounting against Defendants Punta Gorda Acquisitions, LLC (“Acquisitions”), Punta Gorda Senior Living, LP dba The Palms of Punta Gorda Assisted Living (“Senior Living”), Madison Realty Equities, LLC (“Equities”), GT Madison Realty, LLC (“GT Madison”), Gary Langendoen (“Langendoen”), and the Estate of Luke V. McCarthy (“McCarthy”). Plaintiffs allege that Defendants misappropriated their investments, which has resulted in a total loss of each of their $500,000 investments.

Plaintiffs now move for leave to file a Second Amended Complaint. Senior Living and GT Madison (jointly, “Defendants”) oppose.

EVIDENCE

The court grants Defendants’ request for judicial notice in its entirety.

LEGAL STANDARD

Pursuant to Code of Civil Procedure section 473, subdivision (a)(1), “[t]he court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading.” Amendment may be allowed at any time before or after commencement of trial. (Code Civ. Proc., 576.) “[T]he court’s discretion will usually be exercised liberally to permit amendment of the pleadings. The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified.” (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428 (internal citations omitted).) “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….” (Morgan v. Sup. Ct. (1959) 172 Cal.App.2d 527, 530.) Prejudice includes “delay in trial, loss of critical evidence, or added costs of preparation.” (Solit v. Tokai Bank, Ltd. New York Branch (1999) 68 Cal.App.4th 1435, 1448.)

A motion to amend a pleading before trial must include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments. (Cal. Rules of Court, rule 3.1324(a).) The motion must also state what allegations are proposed to be deleted or added, by page, paragraph, and line number. (Cal. Rules of Court, rule 3.1324(a).) Finally, a separate supporting declaration specifying the effect of the amendment, why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and the reason the request for amendment was not made earlier must also accompany the motion. (Cal. Rules of Court, rule 3.134(b).)

DISCUSSION

The court finds that Plaintiffs have satisfied the procedural requirements associated with the motion. The court further finds that Plaintiffs have established that the proposed amendments are proper. Contrary to Defendants’ arguments, the Second Amended Complaint does not appear to be a sham pleading. The proposed allegation that adds Senior Living as a wrongdoer, in addition to GT Madison and Acquisitions, conceivably stems from the allegation that all of these entities are controlled by the same person, and so misrepresentations made by that person can be attributed to the different entities (or made on behalf of different entities). Whether these allegations are sufficient to state a cause of action is more appropriately left to a motion directed to the amended pleading. (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.) The court also finds that Defendants will not be prejudiced by the amendment.

CONCLUSION

Based on the foregoing, the court grants Plaintiffs’ motion for leave to file a Second Amended Complaint.

The court orders Plaintiffs to file and serve the Second Amended Complaint within 3 days of the date of this order.

Plaintiffs are ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: June 23, 2022

Colin Leis

Judge of the Superior Court

Case Number: *******0974 Hearing Date: May 16, 2022 Dept: 3

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTHEAST DISTRICT

DEPARTMENT 3

MOVING PARTIES: Plaintiffs Futang Ji, Fan-Ling Wen, Yi-Ching Wu, Mingde Zheng, and Yong Zong

RESPONDING PARTIES: Defendants Punta Gorda Senior Living, LP and GT Madison Realty, LLC

Motion for Leave to File Second Amended Complaint

The court considered the moving papers, opposition, and reply papers filed in connection with this motion.

BACKGROUND

Plaintiffs Futang Ji, Fan-Ling Wen, Yi-Ching Wu, Mingde Zheng, and Yong Zong are five foreign EB-5 investors who each invested $500,000 for the purpose of expanding a senior living facility in Punta Gorda, Florida. The initial complaint was filed on July 27, 2021, and the operative First Amended Complaint (“FAC”) was filed on January 11, 2022. The FAC asserts causes of action for (1) money had and received, (2) negligence, (3) unjust enrichment, (4) fraud, and (5) accounting against Defendants Punta Gorda Acquisitions, LLC (“Acquisitions”), Punta Gorda Senior Living, LP dba The Palms of Punta Gorda Assisted Living (“Senior Living”), Madison Realty Equities, LLC (“Equities”), GT Madison Realty, LLC (“GT Madison”), Gary Langendoen (“Langendoen”), and the Estate of Luke V. McCarthy (“McCarthy”). Plaintiffs allege that Defendants misappropriated their investments, which has resulted in a total loss of each of their $500,000 investments.

Plaintiffs now move for leave to file a Second Amended Complaint. Senior Living and GT Madison (jointly, “Defendants”) oppose.

EVIDENCE

The court grants Defendants’ request for judicial notice in its entirety.

LEGAL STANDARD

Pursuant to Code of Civil Procedure section 473, subdivision (a)(1), “[t]he court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading.” Amendment may be allowed at any time before or after commencement of trial. (Code Civ. Proc., 576.) “[T]he court’s discretion will usually be exercised liberally to permit amendment of the pleadings. The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified.” (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428 (internal citations omitted).) “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….” (Morgan v. Sup. Ct. (1959) 172 Cal.App.2d 527, 530.) Prejudice includes “delay in trial, loss of critical evidence, or added costs of preparation.” (Solit v. Tokai Bank, Ltd. New York Branch (1999) 68 Cal.App.4th 1435, 1448.)

A motion to amend a pleading before trial must include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments. (Cal. Rules of Court, rule 3.1324(a).) The motion must also state what allegations are proposed to be deleted or added, by page, paragraph, and line number. (Cal. Rules of Court, rule 3.1324(a).) Finally, a separate supporting declaration specifying the effect of the amendment, why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and the reason the request for amendment was not made earlier must also accompany the motion. (Cal. Rules of Court, rule 3.134(b).)

DISCUSSION

The court notes that Plaintiffs failed to state what allegations are proposed to be added by page, paragraph and line number in the motion or, alternatively, a red-lined version of the Second Amended Complaint that shows what allegations are proposed to be added (and what allegations have been deleted). The court will require this information before making a determination on the merits.

CONCLUSION

Based on the foregoing, the court continues the hearing on Plaintiffs’ motion for leave to file a Second Amended Complaint to , at 8:30 a.m., in Dept. 3.

The court orders Plaintiffs to file and serve within 3 days of the date of this order a supplemental declaration either stating by page, paragraph, and line number the allegations that are proposed to be added and/or deleted or, in the alternative, a red-lined version of the Second Amended Complaint showing the proposed additions and/or deletions.

Plaintiffs are ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: May 16, 2022

Colin Leis

Judge of the Superior Court