Pending - Other Pending
PEOPLE OF THE STATE OF CALIFORNIA EX REL. CALIFORNIA AIR RESOURCES BOARD
NOIL ENERGY GROUP INC.
NOIL USA INC.
LEVITAN ADAM L
5/14/2021: Notice of Case Assignment - Unlimited Civil Case
5/14/2021: Civil Case Cover Sheet
5/14/2021: Summons - SUMMONS ON COMPLAINT
5/24/2021: Notice of Case Management Conference
5/19/2021: Notice of Related Case
DocketNotice of Related Case; Filed by People of the State of California ex rel. California Air Resources Board (Plaintiff)[+] Read More [-] Read Less
DocketSummons (on Complaint); Filed by People of the State of California ex rel. California Air Resources Board (Plaintiff)[+] Read More [-] Read Less
DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk[+] Read More [-] Read Less
DocketComplaint; Filed by People of the State of California ex rel. California Air Resources Board (Plaintiff)[+] Read More [-] Read Less
DocketCivil Case Cover Sheet; Filed by People of the State of California ex rel. California Air Resources Board (Plaintiff)[+] Read More [-] Read Less
Case Number: *******8270 Hearing Date: March 23, 2022 Dept: 51
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
AVX DESIGN & INTEGRATION, et al.
Case No. 20STCV18270
TENTATIVE RULING ON MOTION TO COMPEL DEPOSITION OF IAN PATTERSON
The court is baffled by this motion and the parties’ respective positions. Counsel should appear to argue. The court has at least the following questions.
1. If the witness is “party affiliated”, why did plaintiff want to depose him and require him by notice to bring documents?
2. When did the defense learn of the witness and that he had information the defense wished to acquire?
3. Was the witness under subpoena to appear for the plaintiff’s noticed deposition?
4. Why did the defense not cross-notice the deposition to avoid just this situation?
5. Does the defense contend that plaintiff did or said something that constituted a representation that plaintiff could and would produce the witness upon request and without a subpoena, and therefore there is detrimental reliance?
6. Does plaintiff concede (as she apparently does) that the defense was not required to serve a subpoena on the witness to compel his appearance?
7. Why did plaintiff cancel the depo at the eleventh hour?
8. Is plaintiff planning to call the witness at trial?
Dated: March 18, 2022 /s/
Lawrence P. Riff
Judge of the Superior Court
Case Number: *******8270 Hearing Date: July 6, 2021 Dept: 34
SUBJECT: Motion for Leave to File Amended Complaint
Moving Party: Plaintiff People of the State of California ex. rel. California Air Resources Board
Resp. Party: None
The Court GRANTS the motion for leave to file an amended complaint.
“Pursuant to Health and Safety Code section 43031, this action is brought by the Attorney General at the request of the California Air Resources Board (the Air Board) on behalf of the People of the State of California. The People seek civil penalties to punish multiple violations of California’s Regulation on Commercialization of Alternative Diesel Fuels (ADF regulation) promulgated by the Air Board (Cal. Code Regs., tit. 13, ; 2293 et seq.), along with injunctive relief to prevent defendants from violating those laws in the future.” (Complaint, ¶ 1.)
On August 10, 2020, Plaintiff People of the State of California ex. rel. California Air Resources Board (“the People”) filed a complaint for civil penalties and injunctive relief against Defendant NOIL Energy Group, Inc. Plaintiff asserts causes of action against Defendant for (1) Health and Safety Code section 43027(c) – Strict Liability; (2) Health and Safety Code section 43027(b) – Negligence; (3) Health and Safety Code section 43027(a) – Intentional Conduct; and (4) Health and Safety Code section 43027(d) – Failure to Keep Required Documents.
On January 19, 2021, the Court overruled Defendant NOIL Energy Group, Inc.’s demurrer to the complaint.
On May 6, 2021, Plaintiff filed an amendment to the complaint, replacing DOE 1 with Noil USA, Inc.
On June 22, 2021, the Court found that the following cases, 20STCV30142, 20STCV30292, 21STCV18251, and *******8270, are related, and designated 20STCV30142 as the lead case.
Before the Court is Plaintiff’s motion for leave to file a first amended complaint (“FAC”), filed on June 11, 2021.
I. Motion for Leave to File an Amended Answer
A. Legal Standard
The court may, in furtherance of justice and on any proper terms, allow a party to amend any pleading. (Code Civ. Proc., ; 473, subd. (a)(1); Branick v. Downey Savings & Loan Association (2006) 39 Cal.4th 235, 242.) The court may also, in its discretion and 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. (Code Civ. Proc., ; 473, subd. (a); Branick, supra, 39 Cal.4th at 242.) “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.) Leave to amend is thus liberally granted, provided there is no statute of limitations concern. (Kolani v. Gluska (1998) 64 Cal.App.4th 402, 411.) The court may deny the plaintiff’s leave to amend if there is prejudice to the opposing party, such as delay in trial, loss of critical evidence, or added costs of preparation. (Ibid.)
Under California Rules of Court, rule 3.1324, 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. (Cal. Rules of Court, rule 3.1324(a).) A separate supporting declaration specifying (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 reason why the request for amendment was not made earlier must accompany the motion. (Id., rule 3.1324(b).)
Plaintiff moves for leave to file a FAC which “adds allegations against NOIL Enenrgy and the recently added Doe defendant NOIL USA, Inc. (‘NOIL USA’) relating to facts revealed during discovery and further investigation of this matter.” (Motion, p. 2:12-14.) In particular, Plaintiff explains that “the FAC adds dates of additional violations of California’s Regulation on Commercialization of Alternative Diesel Fuels (ADF regulation) (Cal. Code Regs., tit. 13, ; 2293 et seq.) by both defendants.” (Id. at p. 2:14-16.) Plaintiff asserts that “the new allegations clarify that NOIL Energy is liable as a blender and distributor of the non-compliant fuel at issue, while NOIL USA is liable as a retailer of that fuel.” (Id. at p. 2:16-18.) Further, Plaintiff contends that “the allegations in the FAC clarify that the added dates of violations serve as examples of further violations that support Plaintiffs’ general allegations that both NOIL Energy and NOIL USA violated the ADF regulation throughout 2017, 2019, 2020, and 2021.” (Id. at p. 2:18-21.)
Specifically, Plaintiff explains that “the FAC makes the following changes to the original complaint:
a. The FAC substitutes newly confirmed Attorney General Rob Bonta for the state’s departing Attorney General Xavier Becerra. (Ex. B at pp. 1, 26.)
b. The FAC names NOIL USA, Inc. as a party and as the retailer of the non-compliant fuel sold or offered for sale from the retail gasoline service stations identified in the original complaint. (Ex. B, at pp. 1, 3, 4, 5, 9, 12, 13, 18, 20-22, 25-27, ¶¶ 3, 5, 8, 13-15, 29, 43, 47-52, 65-75, 94-105, 120, Prayer for Relief ¶¶ 1-6.)
c. The FAC adds factual allegations to clarify that Plaintiffs seek to hold the originally named Defendant NOIL Energy liable as the blender and distributor of the non-compliant fuel sold and/or supplied to the gasoline stations identified in the original complaint. (Ex. B, at pp. 2, 4, 5, 6, 8, 10, 13-14, 18, 21, 20-23, 25-27, ¶¶ 2, 7, 14-16, 24, 33-34, 47- 53, 65-78, 94-107, 120, 123, Prayer for Relief ¶¶ 1-6.)
d. The FAC adds factual allegations against both defendants asserting additional dates of violations relating to the sale and/or offer for sale of non-compliant fuel from the gasoline stations identified in the original complaint, and clarifying that those examples of violations support Plaintiffs’ general allegations that both Defendants violated the ADF regulation throughout 2017, 2019, 2020 and 2021. (Ex. B, at pp. 3, 8-9, 10-12, 13, 16-17, 20-22, ¶¶ 3, 26-28, 30, 35-39, 47-52, 66-74, 91, 94-105.)
e. The FAC adds factual allegations to clarify that each retail sale of non-compliant fuel is a violation as to every entity in the supply chain which contributed to that sale or supply of fuel, including where applicable both NOIL Energy and NOIL USA. (Ex. B, at pp. 3, 4, 6, 9, 11, 15, 20, 24 ¶¶ 5, 7-9, 18, 30, 37, 61-62, 90, 119.)
f. The FAC adds factual allegations to clarify and assert that in 2017, 2019, 2020 and 2021, Defendant NOIL Energy negligently and intentionally failed to keep and/or submit records to the California Air Resources Board that are required to be maintained and/or submitted by blenders or distributors under the ADF Regulation. (Ex. B, at pp. 3, 8, 9-10, 12, 14-15, 18-19, 23-26, ¶¶ 3, 24, 31, 40-42, 44, 54-58, 79-87, 108-116, 124-125, 128.).” (Id. at pp. 2:25-3:23.) Plaintiff attaches a copy of the proposed FAC as Exhibit B to the declaration of Gary E. Tavetian.
Plaintiff argues that “the Court should grant the amendment because NOIL Energy refuses to provide discovery relating to periods of time outside the dates of the specific violations referenced in the original complaint.” (Motion, p. 9:5-7, citing Tavetian Decl., ¶¶ 9-11.) Plaintiff asserts that it “seek[s] leave to file the FAC to make clear that Plaintiff[’s] investigation to date has uncovered more evidence of ongoing violations of the ADF Regulation by NOIL Energy and NOIL USA.” (Id. at p. 9:7-9.) Plaintiff argues that “as a matter of judicial economy, amendment is appropriate here to allow the Court to adjudicate all of Plaintiff[’s] allegations – that relate to the same general set of facts – in a single action, rather than multiple actions.” (Id. at p. 9:12-14.) Plaintiff asserts that Defendants will not be prejudiced by the amendment because defense counsel does not oppose the amendment. (Id. at p. 10:3-7, citing Tavetian Decl., ¶¶ 6-7.)
Plaintiff’s motion complies with the requirements of California Rules of Court, rule 3.1324 and there exists good cause for allowing the amendment. The declaration submitted in support of the motion satisfies the requirements of California Rules of Court, rule 3.1324 because there is a clear explanation for why this amendment is sought now. The declaration identifies (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) why the request for amendment was not made earlier. (See Cal. Rules of Court, Rule 3.1324(b); see also Tavetian Decl., ¶¶ 3, 5, 9-12.)
No party has filed an opposition or indicated that any party will be prejudiced by this amendment.
Because the Court is to exercise discretion liberally the permit amendment of the pleadings (see Kittredge Sports Co., 213 Cal.App.3d at 1047), the Court GRANTS Plaintiff’s motion for leave to file an amended complaint.
The First Amended Complaint to be filed within 7 days.
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