Motion,Ex Parte: IDA CHRISTINA FUA CRUZ VS. JOEL ENRIQUE ANDINO SANCHEZ et al

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IAM

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

Document Scanning Lead Sheet
May-07-2014 3:50 pm

Case Number: CGC-11-515542
Filing Date: May-07-2014 3:48
Filed by: BOWMAN LIU
Juke Box: 001 Image: 04475245
OPPOSITION

IDA CHRISTINA FUA CRUZ VS. JOEL ENRIQUE ANDINO SANCHEZ et al

001004475245

Instructions:
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Superior Co =
TODD P. EMANUEL (SBN 169301) Couns! COUR Of Calor
MARK D. ROSENBERG (SBN 245733) nly of San Frangiena
Emanuel Law Group MAY ~ 7
702 Marshall Street, Suite 400 2014

Redwood City, California 94063 CLE
Telephone: (950) 369-8600 By F THE COURT
Facsimile: (650) 369-8999

Bo Dg;

Puty Clerk
Attorneys for Plaintiff: WMA Lh
IDA CRISTINA CRUZ FUA
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
IDA CRISTINA CRUZ FUA, Case No. CGC-11-515542
Plaintiff, PLAINTIFF’S OPPOSITION TO
vs. DEFENDANT TAXI EQUIPMENT LEASING
LLC’S MOTION TO STRIKE;
JOEL ENRIQUE ANDINO SANCHEZ, an DECLARATION OF COUNSEL;
individual; CAROLINE MILLER, an [PROPOSED] ORDER

individual; TAX! EQUIPMENT LEASING

LLC, a limited liability company; SAN .
FRANCISCO TAXI ASSOCIATION, & Date: May 20, 2014
corporation; YELLOW CAB Dept: 302.

COOPERATIVE, INC., a Corporation; and
DOES 1 TO 50, inclusive.,

Defendants.

L
INTRODUCTION
Defendant's Motion to Strike Portions of Plaintiff's First Amended Complaint must
be denied because (1) Defendant TAX! EQUIPMENT LEASING LLC stipulated to the
Amendment, (2) the Alter Ego amendment was anticipated by the Court and (3) Plaintiff
will simply file a new Motion for Leave to Amend if Defendant’s Motion to Strike is granted.

Points & Authorities in Support of Opposition to Motion to Strike
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Plaintiff IDA CRISTINA CRUZ FUA is represented by Mark D. Rosenberg, Esq. of
the Emanuel Law Group. Defendant TAX! EQUIPMENT LEASING LLC is represented by
Colin Munro, Esq. of Carlos, Calladine & Peterson, LLP.

i
PROCEDURAL HISTORY

The case arises of out a catastrophic motor vehicle collision on April 4, 2011 on
Highway 101 resulting in left sided paralysis and a traumatic brain injury. Plaintiffs
Complaint was filed on October 31, 2011. On January 3, 2014, Plaintiff obtained a
Stipulation of Parties to continue the trial date from February 24, 2014 to September 22,
2014 based on the fact that Plaintiff was going to amend the Complaint to add a cause of
action for Alter Ego.

On January 23, 2014, TEL brought a Motion for Summary Judgment as to Plaintiff's
original Complaint. Judge Goldsmith ruled that that TEL’s Motion would not be considered
a Motion for Summary Judgment, but a Judgment on the Pleadings and granted Leave to
Amend.

During the argument at the hearing, Judge Goldsmith suggested a short time for
Plaintiff to amend the Pleadings. Plaintiff's counsel argued that Plaintiff needed 45 days in
order to allow Plaintiff to file an Amended Pleading with the additional cause of action for
Alter Ego. Judge Goldsmith agreed to allow Plaintiff to allow 45 days to make such an
amendment. See Declaration of Mark D. Rosenberg. The Order does not cite the
extension to file a First Amended Complaint because Plaintiff intended to formally file a
Motion for Leave to File an Amended Complaint for the Alter Ego cause of action. Before
filing the motion however, all parties agreed, including TEL, to stipulate to the filing of the

First Amended Complaint with the Alter Ego cause of action included.

Points & Authorities in Support of Opposition to Motion to Strike
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On February 24, 2014, Plaintiff circulated a copy of the First Amended Complaint.
After making several changes based on opposing counsel's own suggestions, Plaintiff
circulated a final version of the First Amended Complaint and received a Stipulation to File
Amended Complaint by all existing parties, including TEL, in lieu of filing a Motion for Leave
to File an Amended Complaint. Plaintiff then filed the First Amended Complaint within the
time allotted by the Court.

Ml.
LEGAL ARGUMENT
Defendant TEL’s motion to strike must be denied because (1) TEL stipulated to the
filing of the First Amended Complaint (2) Judge Goldsmith granted additional time to allow
the filing of a new Alter Ego cause of action and (3) Plaintiff will need to file a formal Motion

for Leave to Amend Complaint if this motion is denied.

A. TAX! EQUIPMENT LEASING LLC STIPULATED TO THE FILING OF THE
AMENDED COMPLAINT WITH THE ALTER EGO CAUSE OF ACTION.

Defendant TEL stipulated to Plaintiff filing of a First Amended Complaint which
included the Alter Ego cause of action. TEL is now seeking to strike their name from the
cause of action which they stipulated Plaintiff could file. TEL’s motion is a motion to strike.
Itis not a demurrer. This motion is not arguing that the cause of action should not be
added because of any insufficiency in the language of the cause of action. Defendant is
simply arguing that Plaintiff should not be allowed leave to add the cause of action since
the Order did not specifically discuss the Alter Ego cause of action.

Plaintiff intended to file a Motion for Leave to Amend the Complaint to add an Alter
Ego cause of action. See Declaration of Mark D. Rosenberg. Before filing however,
Plaintiff requested opposing counsel to stipulate to the filing of an amended complaint.

On February 24, 2014, Plaintiff circulated a copy of the First Amended Complaint.

After making several changes based on opposing counsel's own suggestions, Plaintiff

Points & Authorities in Support of Opposition to Motion to Strike
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circulated a final version of the First Amended Complaint and received a stipulation to file
the First Amended Complaint by all existing parties, including TEL. Plaintiff then filed the
First Amended Complaint within the time allotted by the Court. See Declaration of Mark
Rosenberg.

It is disingenuous for TEL to stipulate to the filing of a First Amended Complaint and
now argue that Plaintiff should not be able to assert certain aspects of the First Amended
Complaint.

B. THE COURT PROVIDED 45 DAYS TO AMEND THE COMPLAINT SO THAT

THE ALTER EGO CAUSE OF ACTION COULD BE ADDED AS WELL.

On January 23, 2014, TEL brought a Motion for Summary Judgment as to Plaintiff's
original Complaint. Judge Goldsmith ruled that that TEL’s Motion would not be considered
a Motion for Summary Judgment, but a Judgment on the Pleadings and granted Leave to
Amend.

During the argument at the hearing, Judge Goldsmith suggested a short time for
Plaintiff to amend the Pleadings. Plaintiff's counsel argued that Plaintiff needed 45 days in
order to allow Plaintiff to file an Amended Pleading with the additional cause of action for
Alter Ego. Judge Goldsmith agreed to allow Plaintiff to allow 45 days to make such an
amendment. See Declaration of Mark D. Rosenberg.

The Order does not cite the extension to file a First Amended Complaint because
Plaintiff intended to formally file a Motion for Leave to File an Amended Complaint for the
Alter Ego cause of action. Before filing the motion however, all parties agreed, including
TEL, to stipulate to the filing of the First Amended Complaint with the Alter Ego cause of

action included.

Cc. AMENDMENTS MAY BE MADE AT ANY TIME.

The right to amend a pleading in the interest of justice is well established in
California law. Amendments to pleading are governed by the California Code of Civil
Procedure §473. Section 473 provides in part:

Points & Authorities in Support of Opposition to Motion to Strike
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The court may in furtherance of justice, and on such terms as may be proper,
allow a party to amend any pleading . . . . The court may likewise, in its
discretion, after notice to the adverse party, allow, upon such terms as may
be just, an amendment to any pleading . . . .

It is judicial policy to resolve all disputes between the parties on their merits, and to
allow amendment of the pleadings to put all such disputes at issue at the time of trial.

Trial courts are vested with the discretion to allow amendments to pleadings

in furtherance of justice. (Code Civ. Proc. §473) . . . That trial courts are to

liberally permit such amendments, at any stage of the proceeding, has been

the established policy in this state . . . resting on the fundamental policy that

cases should be decided on their merits. Hirsa v. Superior Court (1981) 118

CA3d 486, 488-489. Emphasis in the original.

Amendments may be made at any time prior to the verdict with the discretion of the
Court. In Hooper v. Romero (1968) 262 CA2d 574, the Court went so far as to allow the
complaint to be amended after trial before the verdict when an inadvertent defect in the
complaint was discovered while discussing jury instructions in chambers because it did not
result in prejudice to the defendant.

Furthermore, the court must be liberal in granting amendments where doing so
would favor the resolution of all disputed matters between all parties in the same lawsuit.
Nestle v. Santa Monica (1972) 6 Cal. 3df 920.

D, COURTS MUST ALLOW UNPLEADED CAUSES OF ACTION TO BE ADDED
IF THE PARTIES ARE ACTING IN GOOD FAITH.

California Code of Civil Procedure 426.50 governs the amending of additional unpleaded
causes of action. Section 426.50 provides:

A party who fails to plead a cause of action subject to the
requirements of this article whither through oversight,
inadvertence, mistake, neglect., or other cause, may apply to
the court for leave to amend his pleading, or to file a cross-
complaint, to assert such cause at any time during the scope of
the action. The court, after notice to the adverse party. shall
grant, upon such terms as may be just to the parties, leave to
amend the pleadings, or to file the cross-complaint, to assert
such cause if the party who failed to plead the cause acted

Points & Authorities in Support of Opposition to Motion to Strike
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in good faith. This subdivision shall be liberally construed to
avoid forfeiture of causes of action.

In the present situation, plaintiff is acting in good faith in bringing this motion. Plaintiff
recently discovered new information which has led plaintiff to bring a cause of action for

fraud against all defendants in this action. See Declaration of Counsel.

E. ALLOWING THE AMENDMENT IS IN THE INTEREST OF JUSTICE

As noted above, plaintiff added by stipulation a cause of action for alter ego. Plaintiff
did not add this cause of action earlier because plaintiff did not have facts or information
regarding the operation of the taxi business entity YELLOW CAB COOPERATIVE, INC.

F. ALLOWING THE AMENDMENT DOES NOT PREJUDICE DEFENDANT

There is no surprise that Plaintiff was going to bring a cause of action for Alter Ego.
The trial was continued to September 22, 2014 on this basis. Defendant TEL received a
copy of the First Amended Complaint prior to stipulating to its filing. See Declaration of
Mark D. Rosenberg. This cause of action arises out of the same facts and circumstances

as the original pleadings and Complaint.

There is ample opportunity to conduct discovery on the alter ego cause of action.

Discovery has already been conducted as to the ownership issue.

G. GRANTING DEFEDANT’S MOTION WILL SIMPLY REQUIRE PLAINTIFF TO
FILE A NEW MOTION FOR LEAVE TO AMEND.

\f Defendant’s motion to strike is granted, Plaintiff will have no choice, but to file a
Motion for Leave to Amend the Complaint. This motion will be a waste of the Court’s time
and counsel's time, especially since Defendants all agreed and stipulated to the First

Amended Complaint in the first place.

Points & Authorities in Support of Opposition to Motion to Strike
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IV.
CONCLUSION
Defendant’s motion to strike must be denied. Defendant TEL stipulated to the filing
of the First Amended Complaint. If Defendant's motion is granted, plaintiff will be filing a
Motion for Leave to Amend the Complaint. The failure of the Court to allow such an

amendment would deprive IDA FUA of the right to assert a meritorious claim.

DATED: May 6, 2014 Us he

MARK Gp SENBERG
Aare GP laintiff

Points & Authorities in Support of Opposition to Motion to Strike
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