MARC SKIPWITH VS ALPINE INTERIORS CORPORATION, ET AT.,

Tentative Rulings

Case Number: ****8107 Hearing Date: September 15, 2021 Dept: M

CASE NAME: Marc Skipwith v. Alpine Interiors Corporation, et al.

CASE NO.: ****8107

MOTION: Cross-Complainant’s Motion for Leave to Amend the First Amended Cross-Complaint

HEARING DATE: 09/15/2021

Background

On August 1, 2018, Cross-Complainant Alpine Interiors Corporation (“Cross-Complainant”) filed a Cross-Complaint against Cross-Defendant Marc Skipwith (“Cross-Defendant”). The operative pleading is the First Amended Cross-Complaint, which was filed on October 17, 2018, and alleges causes of action for (1) breach of contract, (2) common counts, and (3) fraud. This matter arises from a breach of a lease agreement.

On July 8, 2021, Cross-Complainant filed a Motion for Leave to Amend the First Amended Cross-Complaint. The Court denied the motion without prejudice for Cross-Complainant’s failure to comply with California Rule of Court, Rules 3.1324(a) and (b). Cross-Complainant has filed a new motion seeking leave to amend.

Legal Standard

Under California Rules of Court Rule, rule 3.1324(a), a motion to amend a pleading shall (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.

Under California Rule of Court, rule 3.1324(b), 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.

California Code of Civil Procedure section 473(a)(1) provides, in relevant part: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.” “This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047.)

Analysis

Cross-Complainant did not comply with CRC Rule 3.1324(a). Cross-complainant did not include a red-lined version of the proposed amended cross-complaint. The Court notes, however, that the FACC was filed on a judicial council form and the new amended cross- complaint is on pleading paper, which excuses the lack of compliance. Cross-Complainant has removed the common count claim and has added claims for a violation under the UCL, a common law trademark claim, and a “palming off” claim.

On August 2, 2021, Cross-complainant’s counsel filed a declaration in support of this motion. (See Sherman Decl., see also Supp. Sherman Decl.) The Court tentatively concludes that the declaration meets the bare minimum requirements of California Rule of Court, Rule 3.1324(b). In counsel’s declaration, counsel appears to state that the facts supporting the new causes of action were discovered by his client in 2020, but fails to state when in 2020. The supplemental declaration clarifies that counsel was not informed of these facts by his client until June 2021, but the operative date is when counsel’s client learned of these facts. Cross-Defendant, however, does not argue that it will be prejudiced by this amendment.

Since judicial policy favors resolution of all disputed matters in the same lawsuit, the motion for leave to amend is GRANTED.

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Case Number: ****8107 Hearing Date: July 30, 2021 Dept: M

CASE NAME: Marc Skipwith v. Alpine Interiors Corporation, et al.

CASE NO.: ****8107

MOTION: Cross-Complainant’s Motion for Leave to Amend the First Amended Cross-Complaint

HEARING DATE: 07/30/2021

Background

On August 1, 2018, Cross-Complainant Alpine Interiors Corporation (“Cross-Complainant”) filed a Cross-Complaint against Cross-Defendant Marc Skipwith (“Cross-Defendant”). The operative pleading is the First Amended Cross-Complaint, which was filed on October 17, 2018, and alleges causes of action for (1) breach of contract, (2) common counts, and (3) fraud. This matter arises from a breach of a lease agreement.

On July 8, 2021, Cross-Complainant filed the instant Motion for Leave to Amend the First Amended Cross-Complaint (“FACC”) to add additional causes of action for breach of California Business and Professions Code section 17200, common law trademark infringement, and palming off (collectively, the “new causes of action”).

Legal Standard

Under California Rules of Court Rule, rule 3.1324(a), a motion to amend a pleading shall (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.

Under California Rule of Court, rule 3.1324(b), 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.

California Code of Civil Procedure section 473(a)(1) provides, in relevant part: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.” “This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047.)

Analysis

As a preliminary matter, the Court notes that the Motion did not comply with the statutory notice requirements of California Code of Civil Procedure section 1005(b). Based on the hearing date, Cross-Complainant was required to file and serve the Motion no later than July 6, 2021. Cross-Complaint did not serve and file the Motion until July 8, 2021. Cross-Defendant, however, has waived this procedural defect because, even though he raised the issue, he also substantively opposed the Motion and did not show prejudice by the late filing or otherwise request a continuance. (See Carlton v. Quilt (2000) 77 Cal.App.4th 690, 697.)

Cross-Complainant’s Motion is also procedurally defective because Cross-Complainant failed to comply with California Rule of Court, Rules 3.1324(a) and (b). Those mandatory requirements were not waived by Cross-Defendant’s opposition. Therefore, the motion is denied.

Case Number: ****8107    Hearing Date: October 05, 2020    Dept: M

CASE NAME: Marc Skipwith v. Alpine Interiors Corp., et al.

CASE NO.: ****8107

MOTION: Defendants’ Motion to Continue Trial and All Pre-trial Dates

HEARING DATE: 10/5/2020

BACKGROUND

In September 2018, Plaintiff Marc Skipwith, (“Plaintiff”) filed a verified third amended complaint against Defendant Alpine Interior Corporation, Johannes Van Ierland, and Does 1 -10 for (1) involuntary dissolution of corporation, (2) open book account, and (3) fraud. The original trial date was set for October 13, 2020. On August 6, 2020, Defendants filed a motion seeking a continuance of the trial date and all associated pretrial dates to at least 90 days from the dates set. This motion is unopposed.

On August 12, 2020, the Court, on its own motion, vacated the Jury Trial scheduled for October 13, 2020 and set the matter for a trial setting conference.

LEGAL STANDARD

Granting or denying a continuance is within the Court’s discretion. (Schlothan v. Rusalem, (1953) 41 Cal.2d 414, 417.) Each request for a continuance is considered on its own merits. (CRC Rule 3.1332(c).) However, “there is no right to a continuance as a matter of law.” (Fisher v. Larsen, (1982) 138 Cal.App.3d 627, 648.) The Court will only grant a continuance when the moving party has affirmatively established that good cause exists. (Ibid.)

The general discovery deadline is 30 days before the trial date. (Code Civ. Proc., ; 2024.020.) The expert witness discovery deadline is 15 days before the trial date. (Code Civ. Proc., ; 2024.030.)

ANALYSIS

Defendants argue that good cause exists to continue all pretrial dates. Circumstances that may indicate good cause include, “(6) A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or (7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.” (CRC Rule 1332(c) (6) & (7).). Defendants request a continuance of at all associated pretrial dates to at least 90 days from the dates set.

All pretrial deadlines were computed based on the October 13, 2020 trial date. Defendants request a continuance to complete discovery. Defendants argue that they have been unable to respond to discovery because Johannes Van Ierland was stuck in Germany caring for his ill mother due the coronavirus pandemic. Under CRC Rule 3.1332(c)(6), there is good cause to continue trial when a party makes an affirmative showing that there has been an excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts. Defendants argue that the earliest date that Van Ierland would be able to return was August 17, 2020. Sherman, Defendants’ counsel, explains that he has had limited communication with Van Ierland after Van Ierland left to take care of his mother. Sherman also notes that responsive documents to Plaintiff’s requests for production are in a secure location that can only be accessed by Van Ierland. (See Sherman Decl. ¶¶ 8-12.)

The Court finds that Defendants have made an affirmative showing of good cause to issue a continuance of all pretrial dates.

Plaintiff’s Motion to Continue Trial and all Related Dates is GRANTED. The new trial date will be set at the TSC. All pretrial discovery dates will follow the new trial date.