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PAUL
1624
A. WARNER,
Santa Clara
ESQ.
Drive, Suite
(SBN
220
112168)
FILED
COURT_OF CALIFORNIA
SUPERIOR
Roseville, CA 95661 C OUNTY OF PLACER
Telephone: (916) 996-3100
wat 09 2018
WwW
Facsimile: (916) 789-7557
JAKE CHATTERS
bk
EXECUTIVE OFFICER & CLERK
Attorneys for Plaintiff Voyager Restaurant Group, Inc., and By: C. Waggoner, Deputy
Cross-Defendants Mitra Alizadeh and Mike Alizadeh
DW
nN
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
oo
IN AND FOR THE COUNTY OF PLACER
10
11 VOYAGER RESTAURANT GROUP, INC., Case No. SCV 0035599
a California corporation
12 OPPOSITION TO MOTION FOR LEAVE
Cross-complainants, TO FILE AMENDED ANSWER TO
13 v.
THIRD AMENDED COMPLAINT
14 SONORA GASOLINE CORPORATION, a
15 California corporation formerly known as
SONORA PETROLEUM, INC., a California Hearing
16 corporation, GURRAJ SINGH GREWAL, Date: January 23, 2018
Time: 8:30 a.m.
SABAL FINANCIAL GROUP LP, a
17 Delaware limited partnership; 2012-SIP-1
Dept.: 40
VENTURE LLC, a Delaware limited liability
18
company as successor to TENNESSEE
19 COMMERCE BANK, a Tennessee State
chartered bank, ROSEVILLE PETROLEUM, “UNLIMITED CIVIL CASE”
20 INC., a California corporation, NIRMAL
SINGH, and DOES ONE through TWENTY,
21 inclusive,
22
cross-defendants.
23
24
25
26
27
1
28 OPPOSITION TO MOTION FOR LEAVE TO FILE AMENDED ANSWER TO THIRD AMENDED
COMPLAINT
SONORA GASOLINE CORPORATION, a
California corporation formerly known as
SONORA PETROLEUM, INC., a California
corporation, and GURRAJ SINGH GREWAL
Cross-Complainant,
v.
VOYAGER RESTAURANT GROUP, INC.,
a California corporation, Mitra Alizadeh, and
Mike Alizadeh
Cross-Defendants.
ARGUMENT
10
1. The Court Should Deny Defendant’s Motion as Untimely
11
12 Leave to amend may be denied for unreasonable delay resulting in prejudice to the
13 defendant. [A.N. v. County of Los Angeles (2009) 171 CA4th 1058, 1068, 90 CR3d 293, 301].
14
If the party seeking the amendment has been dilatory, and the delay has prejudiced the
15
opposing party, the judge has discretion to deny leave to amend. [See Hirsa v. Sup.Ct. (Vickers)
16
(1981) 118 CA3d 486, 490, 173 CR 418, 420].
17
18 As acknowledged in Defendant’s motion, the information supporting the argument
19 furthered for the amendments were known at the time of the original filing of the amendment
20 and Defendant offers no explanation for the delay.
21 Plaintiff will be prejudiced in responding to the proposed amended answer in that the
22
time to conduct discovery as to the new affirmative defenses and theories will be significantly
23
shortened considering the pending trial date. The original theory of the defense, as asserted in
24
the Answer to the First Amended Complaint, alleged the terms of a partnership agreement as a
25
26 condition precedent to the lease, the failure to obtain Sonic Corporations approval of the
27 partnership agreement, and misrepresentation as to the status of the corporation with the
2
28 OPPOSITION TO MOTION FOR LEAVE TO FILE AMENDED ANSWER TO THIRD AMENDED
COMPLAINT
Secretary of State. The proposed Amended Answer to the Third Amended Complaint alters the
theory of the defense by adding the failure of Defendant’s bank to provide a loan, the failure of
the bank, excusal as a basis for rescission, failure to obtain a Sonic franchise, failure of the
partnership to operate the restaurant, and the lack of the filing of a dba of Sonic.
-
In response to discovery, Plaintiff has provided information regarding waiver and
DN
modification. Plaintiff is entitled to discover Defendant’s reasoning asserting these new
NY
theories of defense.
Oo
Moreover, should Plaintiff file a demurrer to the amended answer, the matter will no
Oo
10 longer be at issue. Leave to amend was properly rejected where proposed amendments were
1 untimely and also subject to demurrer [Yee v. Mobilehome Park Rental Review Bd. (1998) 62
12 CA4th 1409, 1429, 73 CR2d 227, 240; see also Aroa Marketing, Inc. v. Hartford Ins. Co. of
13 Midwest (2011) 198 CA4th 781, 789, 130 CR3d 466, 472]
14
15
2. The Court Should Deny Defendant’s Motion as Invalid
16
17 The judge undoubtedly has discretion to deny leave to amend where a proposed
18 amendment fails to state a valid cause of action or defense. [See California Casualty General
19
Ins. Co. v. Sup.Ct. (Gorgei) (1985) 173 CA3d 274, 280-281, 218 CR 817, 821(disapproved on
20
other grounds in Kransco v.American Empire Surplus Lines Ins. Co. (2000) 23 C4th 390, 407,
21
97 CR2d 151, 164, fn. 11)]. Such denial is“most appropriate” where the pleading is deficient
22
23 as a matter of law and the defect could not be cured by further appropriate amendment.
24 [California Casualty General Ins. Co. v. Sup.Ct. (Gorgei), supra, 173 CA3d at 281, 218 CR at
25 821; Foxborough v. Van Atta (1994) 26 CA4th 217, 230, 31 CR2d 525, 532—proposed
26 amendment barred by statute of limitations and no basis for “relation back”].
27
3
28 OPPOSITION TO MOTION FOR LEAVE TO FILE AMENDED ANSWER TO THIRD AMENDED
COMPLAINT
Defendant’s penultimate argument incorrectly asserts the failure to file a fictitious
business statement with the Placer County where Plaintiff's principal place of business exists.
Contrary to Defendant’s assertion, Voyager Restaurant Group, Inc. filed such a statement
identifying itself as a dba Sonic Drive In. [See Request for Judicial Notice, served and filed
herewith at Exhibit A.]
3. The Court Should Impose the Reasonable Condition of Continuing the Trial
Similarly, the court’s discretion to impose conditions on leave to amend the complaint
“extends only to those conditions which are just, i.e.,intended to compensate the defendants for
any inconvenience belated amendment may cause.” As discussed above, the significant
10
11 change in the defensive theories reasonably requires the Plaintiff the opportunity to discover
12 the basis therefore. Accordingly, should the Court consider Defendant’s motion, the pending
13 trial date must be extended to allow for discovery and responsive pleadings.
14
Motions for leave to amend the pleadings are directed to the sound discretion of the
15
judge. “The court may, in furtherance of justice, and on any terms as may be proper, allow a
16
party to amend any pleading ...[CCP § 473(a)(1) (emphasis added); and see CCP § 576]
17
CONCLUSION
18
19 The Court should deny Defendant’s motion for leave to filethe amended answer to the
20 third amended complaint. Alternatively, the Court should impose the reasonable condition of
21 continuing the trial in the furtherance of justice.
22
23
DATED: January 9, 2018
24
25
PAUL A. WARN
26 Attorney for Plaintiff Voyager Restaurant Group,
Inc.
27
4
28 OPPOSITION TO MOTION FOR LEAVE TO FILE AMENDED ANSWER TO THIRD AMENDED
COMPLAINT
Preview
PAUL 1624 A. WARNER, Santa Clara ESQ. Drive, Suite (SBN 220 112168) FILED COURT_OF CALIFORNIA SUPERIOR Roseville, CA 95661 C OUNTY OF PLACER Telephone: (916) 996-3100 wat 09 2018 WwW Facsimile: (916) 789-7557 JAKE CHATTERS bk EXECUTIVE OFFICER & CLERK Attorneys for Plaintiff Voyager Restaurant Group, Inc., and By: C. Waggoner, Deputy Cross-Defendants Mitra Alizadeh and Mike Alizadeh DW nN IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA oo IN AND FOR THE COUNTY OF PLACER 10 11 VOYAGER RESTAURANT GROUP, INC., Case No. SCV 0035599 a California corporation 12 OPPOSITION TO MOTION FOR LEAVE Cross-complainants, TO FILE AMENDED ANSWER TO 13 v. THIRD AMENDED COMPLAINT 14 SONORA GASOLINE CORPORATION, a 15 California corporation formerly known as SONORA PETROLEUM, INC., a California Hearing 16 corporation, GURRAJ SINGH GREWAL, Date: January 23, 2018 Time: 8:30 a.m. SABAL FINANCIAL GROUP LP, a 17 Delaware limited partnership; 2012-SIP-1 Dept.: 40 VENTURE LLC, a Delaware limited liability 18 company as successor to TENNESSEE 19 COMMERCE BANK, a Tennessee State chartered bank, ROSEVILLE PETROLEUM, “UNLIMITED CIVIL CASE” 20 INC., a California corporation, NIRMAL SINGH, and DOES ONE through TWENTY, 21 inclusive, 22 cross-defendants. 23 24 25 26 27 1 28 OPPOSITION TO MOTION FOR LEAVE TO FILE AMENDED ANSWER TO THIRD AMENDED COMPLAINT SONORA GASOLINE CORPORATION, a California corporation formerly known as SONORA PETROLEUM, INC., a California corporation, and GURRAJ SINGH GREWAL Cross-Complainant, v. VOYAGER RESTAURANT GROUP, INC., a California corporation, Mitra Alizadeh, and Mike Alizadeh Cross-Defendants. ARGUMENT 10 1. The Court Should Deny Defendant’s Motion as Untimely 11 12 Leave to amend may be denied for unreasonable delay resulting in prejudice to the 13 defendant. [A.N. v. County of Los Angeles (2009) 171 CA4th 1058, 1068, 90 CR3d 293, 301]. 14 If the party seeking the amendment has been dilatory, and the delay has prejudiced the 15 opposing party, the judge has discretion to deny leave to amend. [See Hirsa v. Sup.Ct. (Vickers) 16 (1981) 118 CA3d 486, 490, 173 CR 418, 420]. 17 18 As acknowledged in Defendant’s motion, the information supporting the argument 19 furthered for the amendments were known at the time of the original filing of the amendment 20 and Defendant offers no explanation for the delay. 21 Plaintiff will be prejudiced in responding to the proposed amended answer in that the 22 time to conduct discovery as to the new affirmative defenses and theories will be significantly 23 shortened considering the pending trial date. The original theory of the defense, as asserted in 24 the Answer to the First Amended Complaint, alleged the terms of a partnership agreement as a 25 26 condition precedent to the lease, the failure to obtain Sonic Corporations approval of the 27 partnership agreement, and misrepresentation as to the status of the corporation with the 2 28 OPPOSITION TO MOTION FOR LEAVE TO FILE AMENDED ANSWER TO THIRD AMENDED COMPLAINT Secretary of State. The proposed Amended Answer to the Third Amended Complaint alters the theory of the defense by adding the failure of Defendant’s bank to provide a loan, the failure of the bank, excusal as a basis for rescission, failure to obtain a Sonic franchise, failure of the partnership to operate the restaurant, and the lack of the filing of a dba of Sonic. - In response to discovery, Plaintiff has provided information regarding waiver and DN modification. Plaintiff is entitled to discover Defendant’s reasoning asserting these new NY theories of defense. Oo Moreover, should Plaintiff file a demurrer to the amended answer, the matter will no Oo 10 longer be at issue. Leave to amend was properly rejected where proposed amendments were 1 untimely and also subject to demurrer [Yee v. Mobilehome Park Rental Review Bd. (1998) 62 12 CA4th 1409, 1429, 73 CR2d 227, 240; see also Aroa Marketing, Inc. v. Hartford Ins. Co. of 13 Midwest (2011) 198 CA4th 781, 789, 130 CR3d 466, 472] 14 15 2. The Court Should Deny Defendant’s Motion as Invalid 16 17 The judge undoubtedly has discretion to deny leave to amend where a proposed 18 amendment fails to state a valid cause of action or defense. [See California Casualty General 19 Ins. Co. v. Sup.Ct. (Gorgei) (1985) 173 CA3d 274, 280-281, 218 CR 817, 821(disapproved on 20 other grounds in Kransco v.American Empire Surplus Lines Ins. Co. (2000) 23 C4th 390, 407, 21 97 CR2d 151, 164, fn. 11)]. Such denial is“most appropriate” where the pleading is deficient 22 23 as a matter of law and the defect could not be cured by further appropriate amendment. 24 [California Casualty General Ins. Co. v. Sup.Ct. (Gorgei), supra, 173 CA3d at 281, 218 CR at 25 821; Foxborough v. Van Atta (1994) 26 CA4th 217, 230, 31 CR2d 525, 532—proposed 26 amendment barred by statute of limitations and no basis for “relation back”]. 27 3 28 OPPOSITION TO MOTION FOR LEAVE TO FILE AMENDED ANSWER TO THIRD AMENDED COMPLAINT Defendant’s penultimate argument incorrectly asserts the failure to file a fictitious business statement with the Placer County where Plaintiff's principal place of business exists. Contrary to Defendant’s assertion, Voyager Restaurant Group, Inc. filed such a statement identifying itself as a dba Sonic Drive In. [See Request for Judicial Notice, served and filed herewith at Exhibit A.] 3. The Court Should Impose the Reasonable Condition of Continuing the Trial Similarly, the court’s discretion to impose conditions on leave to amend the complaint “extends only to those conditions which are just, i.e.,intended to compensate the defendants for any inconvenience belated amendment may cause.” As discussed above, the significant 10 11 change in the defensive theories reasonably requires the Plaintiff the opportunity to discover 12 the basis therefore. Accordingly, should the Court consider Defendant’s motion, the pending 13 trial date must be extended to allow for discovery and responsive pleadings. 14 Motions for leave to amend the pleadings are directed to the sound discretion of the 15 judge. “The court may, in furtherance of justice, and on any terms as may be proper, allow a 16 party to amend any pleading ...[CCP § 473(a)(1) (emphasis added); and see CCP § 576] 17 CONCLUSION 18 19 The Court should deny Defendant’s motion for leave to filethe amended answer to the 20 third amended complaint. Alternatively, the Court should impose the reasonable condition of 21 continuing the trial in the furtherance of justice. 22 23 DATED: January 9, 2018 24 25 PAUL A. WARN 26 Attorney for Plaintiff Voyager Restaurant Group, Inc. 27 4 28 OPPOSITION TO MOTION FOR LEAVE TO FILE AMENDED ANSWER TO THIRD AMENDED COMPLAINT