This case was last updated from Los Angeles County Superior Courts on 10/13/2020 at 00:40:33 (UTC).

JAMES AND JAN LLC VS WALTER RIVERA ET AL

Case Summary

On 05/24/2018 JAMES AND JAN LLC filed a Contract - Other Contract lawsuit against WALTER RIVERA. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is DANIEL S. MURPHY. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7394

  • Filing Date:

    05/24/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

DANIEL S. MURPHY

 

Party Details

Plaintiffs, Petitioners and Cross Defendants

JAMES AND JAN LLC

BISNO ROBERT H

BISNO JEANETTE ANN

W.J. MERCIER CONSTRUCTION INC.

LANE DOBBS DBA DOBBS CONSTRUCTION CO.

Defendants, Respondents and Cross Plaintiffs

RIVERA WALTER

RIVERA WILIFRED

CORNERSTONE BUILDERS LLC

RIVERA ALEX

RIVERA VLADIMIR

DOES 1-50

AMTRUST FINANCIAL SERVICES

UNITED SPECIALTY INSURANCE COMPANY

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

BISNO ROBERT H. ESQ/

BISNO ROBERT HENRY

Defendant and Cross Plaintiff Attorneys

ALDOVER ERNESTO FELIPE

BERGSTEN ROBERT

Cross Defendant Attorneys

BISNO ROBERT

SHINDER DAVID JOSHUA

 

Court Documents

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR LEAVE TO AMEND NOTICE OF MOTION AND MOT...)

9/2/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR LEAVE TO AMEND NOTICE OF MOTION AND MOT...)

Order Granting Attorney's Motion to Be Relieved as Counsel-Civil

3/2/2020: Order Granting Attorney's Motion to Be Relieved as Counsel-Civil

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 04/13/2020

4/13/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 04/13/2020

Stipulation and Order - STIPULATION AND ORDER GRANTING WILIFRED RIVERA DBA CORNERSTONE BUILDERS LEAVE TO FILE A CROSS-COMPLAINT

4/24/2020: Stipulation and Order - STIPULATION AND ORDER GRANTING WILIFRED RIVERA DBA CORNERSTONE BUILDERS LEAVE TO FILE A CROSS-COMPLAINT

Stipulation and Order - STIPULATION AND ORDER TO CONTINUE TRIAL AND ALL RELATED DATES

4/27/2020: Stipulation and Order - STIPULATION AND ORDER TO CONTINUE TRIAL AND ALL RELATED DATES

Summons - SUMMONS ON CROSS COMPLAINT

5/11/2020: Summons - SUMMONS ON CROSS COMPLAINT

Notice - NOTICE OF RULING REGARDING STIPULATION TO CONTINUE TRIAL AND ALL RELATED DATE

5/22/2020: Notice - NOTICE OF RULING REGARDING STIPULATION TO CONTINUE TRIAL AND ALL RELATED DATE

Opposition - OPPOSITION TO PLAINTIFFS' MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT

8/19/2020: Opposition - OPPOSITION TO PLAINTIFFS' MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT

Request for Judicial Notice

8/19/2020: Request for Judicial Notice

Request for Entry of Default / Judgment

10/22/2019: Request for Entry of Default / Judgment

Association of Attorney

7/30/2019: Association of Attorney

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

6/14/2019: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

Case Management Statement

5/29/2019: Case Management Statement

Request for Dismissal

5/30/2019: Request for Dismissal

Declaration - DECLARATION OF LISA G. SHEMONSKY IN COMPLIANCE WITH MEET AND CONFER REQUIREMENT AS TO PLAINTIFF'S FIRST AMENDED COMPLAINT

3/21/2019: Declaration - DECLARATION OF LISA G. SHEMONSKY IN COMPLIANCE WITH MEET AND CONFER REQUIREMENT AS TO PLAINTIFF'S FIRST AMENDED COMPLAINT

Minute Order - Minute Order (Case Management Conference)

2/8/2019: Minute Order - Minute Order (Case Management Conference)

Request for Entry of Default / Judgment

11/13/2018: Request for Entry of Default / Judgment

Proof of Service by Substituted Service

11/13/2018: Proof of Service by Substituted Service

66 More Documents Available

 

Docket Entries

  • 03/09/2021
  • Hearing03/09/2021 at 08:30 AM in Department 32 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 02/25/2021
  • Hearing02/25/2021 at 08:30 AM in Department 32 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 09/08/2020
  • Docketat 08:30 AM in Department 32, Daniel S. Murphy, Presiding; Jury Trial - Not Held - Continued - Stipulation

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  • 09/02/2020
  • Docketat 08:30 AM in Department 32, Daniel S. Murphy, Presiding; Hearing on Motion for Leave to Amend (NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT) - Held

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  • 09/02/2020
  • DocketOrder (re Motion for Leave to File a Second Amended Complaint); Filed by Clerk

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  • 09/02/2020
  • DocketMinute Order ( (Hearing on Motion for Leave to Amend NOTICE OF MOTION AND MOT...)); Filed by Clerk

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  • 09/02/2020
  • DocketNotice of Ruling (REGARDING PLAINTIFF?S MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT); Filed by Wilifred Rivera (Defendant)

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  • 08/27/2020
  • Docketat 08:30 AM in Department 32, Daniel S. Murphy, Presiding; Final Status Conference - Not Held - Continued - Stipulation

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  • 08/19/2020
  • DocketRequest for Judicial Notice; Filed by Wilifred Rivera (Defendant)

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  • 08/19/2020
  • DocketOpposition (to Plaintiffs' Motion for Leave to File a Second Amended Complaint); Filed by Wilifred Rivera (Defendant)

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77 More Docket Entries
  • 10/24/2018
  • DocketProof of Service by Substituted Service; Filed by James and Jan, LLC (Plaintiff)

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  • 09/19/2018
  • Docketat 08:30 AM in Department 32; Case Management Conference (Conference-Case Management; Vacated) -

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  • 09/19/2018
  • DocketMinute order entered: 2018-09-19 00:00:00; Filed by Clerk

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  • 09/19/2018
  • DocketMinute Order

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  • 09/10/2018
  • DocketCASE MANAGEMENT STATEMENT

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  • 07/24/2018
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 07/24/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 05/24/2018
  • DocketCOMPLAINT FOR DAMAGES, BREACH OF CONTRACT, BREACH OF EXPRESS WARRANTY, NEGLIGENCE, FRAUD

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  • 05/24/2018
  • DocketSUMMONS

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  • 05/24/2018
  • DocketComplaint; Filed by James and Jan, LLC (Plaintiff)

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Tentative Rulings

Case Number: BC707394    Hearing Date: September 02, 2020    Dept: 32

James and jan, llc,

Plaintiff,

v.

WALTER RIVERA, et. al.

Defendants.

Case No.: BC707394

Hearing Date: September 2, 2020

[TENTATIVE] order RE:

motion for leave to file a second amended complaint

Background

A. Complaint

Plaintiff James and Jan, LLC (J&J) commenced this action against Defendants Walter Rivera (Walter), Wilfred Rivera (Wilfred), Alex Rivera, Vladimir Rivera, and Cornerstone Builders, LLC (Cornerstone) (collectively, Rivera Defendants) on May 24, 2018. The operative pleading is the First Amended Complaint (FAC) filed on December 18, 2018. The FAC added two plaintiffs Jeanette Ann Bisno (Jeanette) and Robert H. Bisno (Robert) and two defendants United Specialty Insurance Company (USIC) and AmTrust Financial Services (AFS). The FAC asserts causes of action for (1) breach of contract against Rivera Defendants, (2) breach of contract against Doe Defendants, (3) breach of express warranty against Rivera Defendants, (4) negligence against Rivera Defendants, (5) negligent infliction of emotional distress by Jeanette against Rivera Defendants, (6) breach of contract against USIC, (7) breach of contract against AFS, (8) bad faith against USIC, (9) bad faith against AFS, and (10) lack of consortium by Robert against Rivera Defendants. The FAC alleges in pertinent part as follows.

J&J owns real property located at 14820 Mulholland Drive, Los Angeles, CA (Property). On November 5, 2014, J&J and the Rivera Defendants entered into a construction contract (Contract) by which the Rivera Defendants agreed to make repairs to the Property. The repairs performed by the Rivera Defendants under the Contract were negligent. The Rivera Defendants failed to secure the Property from the elements causing the Property to suffer rain damages in excess of $1 million. In addition, the Rivera Defendants failed to ensure the Property’s safety allowing a robber to gain entry onto the Property, assault Jeanette, and steal her personal property.

B. Cross-Complaint

Wilfred dba Cornerstone Builders filed a cross-complaint against J&J and Robert on April 17, 2019. Wilfred alleges that J&J failed to pay Wilfred for services performed at and materials provided to the Property and that Robert was responsible for any incompletion of work. Wilfred asserts causes of action for (1) breach of contract against J&J, (2) implied indemnity against Robert, (3) total equitable indemnity against Robert, and (4) partial equitable indemnity against Robert.

Wilfred filed another cross-complaint against W.J. Mercier Construction, Inc. (WJ) and Lane Dobbs dba Dobbs Construction, Co. (Dobbs) on May 8, 2020. Wilfred alleges that WJ and Dobbs are wholly or partly responsible for the damages alleged in Plaintiffs’ action. Wilfred asserts causes of action for (1) comparative indemnity, (2) declaratory relief, (3) comparative contribution, and (4) negligence.

C. Course of Proceedings

On May 31, 2019, Plaintiffs dismissed USIC and AFS.

On October 22, 2019, default was entered against Walter.

On July 8, 2020, the Court denied without prejudice Plaintiffs’ motion for leave to file a second amended complaint. The Court found that Plaintiffs had not satisfied CRC Rule 3.1324(b)(3) and (4) and that Wilfried would be unfairly prejudiced if the Court permitted this late amendment.

Legal Standard

The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading. (CCP §§ 473(a), 576.) Courts must apply a policy of liberality in permitting amendments at any stage of the proceeding, including during trial, when no prejudice to the opposing party is shown. (Duchrow v. Forrest (2013) 215 Cal.App.4th 1359, 1377.) In determining the extent of prejudice to the opposing party, the court must consider various factors, such as whether the amendment would delay trial or increase the discovery burden. (Demetriades v. Yelp, Inc. (2014) 228 Cal.App.4th 294, 306.)

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. (CRC Rule 3.1324(a).)

In addition, 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. (CRC Rule 3.1324(b).)

Discussion

Plaintiffs move for leave to file a Second Amended Complaint (SAC). Wilfred opposes.[1]

The SAC proposes to remove claims of negligent infliction of emotional distress, bad faith, and lack of consortium and add claims for fraud and fraud in the inducement against the Rivera Defendants. In their proposed fraud claims, Plaintiffs allege that the Rivera Defendants made several misrepresentations to induce them to enter into the Contract. (SAC ¶¶ 35-36, 39.) These misrepresentations allegedly included (1) they were qualified to do the work necessary to complete the contracted-for work on the Property, (2) they were general contractors with general contractors’ licenses, and (3) they could complete the work in an adequate manner by May 31, 2015. (SAC ¶¶ 30-33.)

Wilfred maintains the position that Plaintiffs failed to comply with CRC Rule 3.1324(b)(3) and (4) which require a party requesting leave to amend to file a declaration that specifies (1) “[w]hen the facts giving rise to the amended allegations were discovered” and (2) “[t]he reasons why the request for amendment was not made earlier.” The Court agrees.

Robert, a plaintiff and attorney of record in this matter, states that he produced over 15,000 pages of documents to Defendants from May 30, 2019 to February 6, 2020. (Bisno Decl. ¶ 10.) Robert avers that, during this period of time, he perused the documents as part of his normal case review and preparation. (Ibid.) In October and November 2019, Robert evaluated certain documents about Defendants’ work, including emails from Robert to Defendants. (Bisno Decl. ¶ 10, Ex. D.) The cumulative effect of Robert’s review of the documents led him to draw the conclusion that Defendants’ representations were intentionally fraudulent or made with a willful wanton disregard of the truth. (Ibid.) In December 2019, Robert further researched theories of fraud and fraud in the inducement and concluded Plaintiffs could and should assert fraud against Defendants because Plaintiffs could set forth facts showing Defendants represented that they could and would perform the construction work in a timely and professional manner and they had no ability to do so at the time they made such representations. (Ibid.) In December 2019 and January 2020, Robert and his wife became very ill, and Robert was unable to perform normal work functions. (Ibid.) Notwithstanding this illness, Robert sent defense counsel a letter on February 2, 2020 seeking his consent to the proposed amendment. (Ibid.) Robert brought Plaintiffs’ first leave to amend motion on February 20, 2020. (Ibid.)

The Court finds this explanation unpersuasive. Robert’s declaration indicates that the facts giving rise to this amendment were discoverable for years by reviewing correspondence from Robert to the Defendants from 2015. (Robert Decl. Ex. D.) Robert’s declaration indicates that the reason why this amendment was not made earlier is that Robert chose not to conduct document review until May 30, 2019, i.e., a year after this case was commenced, and spent nearly seven months reviewing the documents and deducing their legal import. As such, Robert’s declaration evinces Plaintiffs’ inexcusable delay in bringing this amendment.

As Wilfred notes, this inexcusable delay factors into a prejudice analysis. “The new allegations will require Defendant to conduct additional discovery as to the issues raised, including written discovery and depositions of Plaintiffs and other witnesses.” (Opp. at 7.) Moreover, this tardy amendment changes the entire complexion of this case by converting this run-of-the-mill breach of contract case into a fraud one. In light of this substantial prejudice, the Court concludes that the policy of liberality does not apply and this amendment is unjustified.[2]

Conclusion

Plaintiffs’ motion for leave to file the SAC is denied.


[1] Wilfred’s request for judicial notice is granted. (Evid. Code § 452(c).)

[2] Wilfred also argues that the misrepresentations alleged by Plaintiffs are not actionable. The Court agrees. Two of the alleged misrepresentations — that Defendants were qualified to do the work necessary to complete the contracted-for work on the Property and could complete the work in an adequate manner by May 31, 2015 — are simply restatements of contractual obligations. Breach of said obligations should be enforced through contract law. (Aas v. Superior Court (2000) 24 Cal.4th 627, 643.) The third misrepresentation involving contractor licensing is refuted by a judicially noticed material reflecting that Cornerstone was properly licensed from November 2010 to November 2020. (RJN Ex. A.)

Case Number: BC707394    Hearing Date: July 08, 2020    Dept: 32

James and jan, llc,

Plaintiff,

v.

WALTER RIVERA, et. al.

Defendants.

Case No.: BC707394

Hearing Date: July 8, 2020

[TENTATIVE] order RE:

motion for leave to file a second amended complaint

Background

A. Complaint

Plaintiff James and Jan, LLC (J&J) commenced this action against Defendants Walter Rivera (Walter), Wilfred Rivera (Wilfred), Alex Rivera, Vladimir Rivera, and Cornerstone Builders, LLC (Cornerstone) (collectively, Rivera Defendants) on May 24, 2018. The operative pleading is the First Amended Complaint (FAC) filed on December 18, 2018. The FAC added two plaintiffs Jeanette Ann Bisno (Jeanette) and Robert H. Bisno (Robert) and two defendants United Specialty Insurance Company (USIC) and AmTrust Financial Services (AFS). The FAC asserts causes of action for (1) breach of contract against Rivera Defendants, (2) breach of contract against Doe Defendants, (3) breach of express warranty against Rivera Defendants, (4) negligence against Rivera Defendants, (5) negligent infliction of emotional distress by Jeanette against Rivera Defendants, (6) breach of contract against USIC, (7) breach of contract against AFS, (8) bad faith against USIC, (9) bad faith against AFS, and (10) lack of consortium by Robert against Rivera Defendants. The FAC alleges in pertinent part as follows.

J&J owns real property located at 14820 Mulholland Drive, Los Angeles, CA (Property). On November 5, 2014, J&J and the Rivera Defendants entered into a construction contract (Contract) by which the Rivera Defendants agreed to make repairs to the Property. The repairs performed by the Rivera Defendants under the Contract were negligent. The Rivera Defendants failed to secure the Property from the elements causing the Property to suffer rain damages in excess of $1 million. In addition, the Rivera Defendants failed to ensure the Property’s safety allowing a robber to gain entry onto the Property, assault Jeanette, and steal her personal property.

B. Cross-Complaint

Wilfred dba Cornerstone Builders filed a cross-complaint against J&J and Robert on April 17, 2019. Wilfred alleges that J&J failed to pay Wilfred for services performed at and materials provided to the Property and that Robert was responsible for any incompletion of work. Wilfred asserts causes of action for (1) breach of contract against J&J, (2) implied indemnity against Robert, (3) total equitable indemnity against Robert, and (4) partial equitable indemnity against Robert.

Wilfred filed another cross-complaint against W.J. Mercier Construction, Inc. (WJ) and Lane Dobbs dba Dobbs Construction, Co. (Dobbs) on May 8, 2020. Wilfred alleges that WJ and Dobbs are wholly or partly responsible for the damages alleged in Plaintiffs’ action. Wilfred asserts causes of action for (1) comparative indemnity, (2) declaratory relief, (3) comparative contribution, and (4) negligence.

C. Course of Proceedings

On May 31, 2019, Plaintiffs dismissed USIC and AFS.

On October 22, 2019, default was entered against Walter.

Legal Standard

The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading. (CCP §§ 473(a), 576.) Courts must apply a policy of liberality in permitting amendments at any stage of the proceeding, including during trial, when no prejudice to the opposing party is shown. (Duchrow v. Forrest (2013) 215 Cal.App.4th 1359, 1377.) In determining the extent of prejudice to the opposing party, the court must consider various factors, such as whether the amendment would delay trial or increase the discovery burden. (Demetriades v. Yelp, Inc. (2014) 228 Cal.App.4th 294, 306.)

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. (CRC Rule 3.1324(a).)

In addition, 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. (CRC Rule 3.1324(b).)

Discussion

Plaintiffs move for leave to file a Second Amended Complaint (SAC). Wilfred opposes.[1]

The SAC proposes to remove claims of negligent infliction of emotional distress, bad faith, and lack of consortium and add claims for fraud and fraud in the inducement against the Rivera Defendants. In their proposed fraud claims, Plaintiffs allege that the Rivera Defendants made several misrepresentations to induce them to enter into the Contract. (SAC ¶¶ 35-36, 39.) These misrepresentations allegedly included (1) they were qualified to do the work necessary to complete the contracted-for work on the Property, (2) they were general contractors with general contractors’ licenses, and (3) they could complete the work in an adequate manner by May 31, 2015. (SAC ¶¶ 30-33.)

Wilfred contends that this motion must be denied because Plaintiffs failed to comply with CRC Rule 3.1324(b)(3) and (4) which require a party requesting leave to amend to file a declaration that specifies “[w]hen the facts giving rise to the amended allegations were discovered” and “[t]he reasons why the request for amendment was not made earlier.” Wilfred correctly points out that the attorney declaration supporting the motion is bereft of this information.

Plaintiffs reply that Wilfred cites “absolutely zero authority” showing that noncompliance with this rule of court is grounds for denial of leave to amend. (Reply at 7.) The Court disagrees. The language of the CRC Rule 3.1324(b) is mandatory and clear: “A separate declaration must accompany the motion and must specify” the foregoing information. (Emphasis added.) It is puzzling that Plaintiffs would cite this rule of court in their moving papers (see Mot. at 3) and comply with subdivision (a) of the rule by submitting redlined and clean versions of the proposed pleading, but then ignore and minimize the importance of subdivisions (b)(3) and (4).

Plaintiffs attempt to cure this defect by submitting a supplemental attorney declaration with their reply papers. Plaintiffs’ attorney avers that the decision to seek leave to amend “was based on review of the tremendous number of documents produced by Plaintiffs.” (Bisno Supp. Decl. ¶ 4.) According to Plaintiffs’ attorney, this production amounted to over 15,000 pages of documents and lasted through February 6, 2020. (Ibid.) Plaintiffs’ attorney avers that this production “caused [him] to commence additional legal research” and led him “to conclude that the [SAC] was well-taken.” (Ibid.)

The Court finds these representations too vague and unconvincing to meet the requirements of subdivisions (b)(3) and (4). Plaintiffs’ attorney fails to identify which specific documents produced and what specific legal research undertaken led him to realize that Plaintiffs had a fraud claim. More important, Plaintiffs’ attorney fails to explain why Plaintiff delayed almost two years in bringing this motion to add these fraud claims.

Plaintiff’s noncompliance with CRC Rule 3.1324(b) reveals glaring problems (such as dilatory conduct) with this motion. These problems justify the motion’s denial.

Also, Wilfred would be unfairly prejudiced if the court were to allow this late amendment.

Conclusion

Plaintiffs’ motion for leave to file the SAC is denied.


[1] Wilfred’s request for judicial notice is granted. (Evid. Code § 452(c).)