SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

KATIE O’CONNELL MARSH, etc.,

Plaintiff,

vs.

GAUMONT TELEVISION USA, LLC f.k.a. GAUMONT INTERNATIONAL TELEVISION, LLC, et al.,

 

Defendants.

AND RELATED CROSS-ACTION

        CASE NO.: BC691790

[TENTATIVE] ORDER RE: MOTION FOR LEAVE TO FILE THIRD AMENDED CROSS-COMPLAINT

Date:  February 4, 2020

Time: 8:30 a.m.

Dept. 56

FSC: August 3, 2020

Jury Trial: August 17, 2020

MOVING PARTY: Defendant and Cross-Complainant Gaumont Television USA, LLC (“Cross-Complainant”)

RESPONDING PARTY: Plaintiff and Cross-Defendant Katie O’Connell Marsh (“Cross-Defendant”)

            The Court has considered the moving, opposition, and reply papers.

BACKGROUND

            Plaintiff filed the operative Second Amended Complaint (“SAC”) against Defendants alleging causes of action for: (1) declaratory relief; (2) breach of contract; (3) breach of the implied covenant of good faith and fair dealing; (4) fraudulent inducement; (5) fraudulent concealment; (6) unfair competition in violation of California Business and Professions Code, Section 17200 et seq.; (7) intentional interference with contract; (8) inducing breach of contract; and (9) accounting.  Plaintiff’s SAC arises from her tenure as a television executive and the alleged failure of Defendants to pay Plaintiff her share of contracted Modified Adjusted Gross Receipts (“MAGR”).

            Cross-Complainant filed the operative Second Amended Cross-Complaint (“SAXC”) alleging causes of action for: (1) breach of contract; (2) conversion; (3) possession of personal property; (4) declaratory relief; (5) fraudulent inducement; and (6) fraudulent concealment.

             Cross-Complainant filed a motion for an order that the Court grant it leave to amend the SAXC by filing a Third Amended Cross-Complaint.  Cross-Complainant seeks to amend the SAXC to add additional causes of action for: (1) fraudulent inducement; (2) intentional interference with contract; (3) inducing breach of contract; and (4) violation of the California Uniform Trade Secrets Act.  Cross-Complainant’s motion is made on the grounds that: (1) granting leave to amend is in the furtherance of justice; and (2) an amendment will not cause any prejudice to Plaintiff because these new causes of action are justified based on existing facts and evidence.

            Cross-Defendant opposes the motion of Cross-Complainant on the grounds that: (1) the motion violates the California Rules of Court; (2) Cross-Complainant has no legitimate excuse for its delay in seeking leave to amend; (3) Cross-Defendant will suffer prejudice if leave to amend is granted; and (4) permitting Cross-Complainant’s proposed amendments would be futile.

Issue No. 1: Procedural Non-Compliance

            California Rules of Court, Rule 3.1324 sets forth the necessary requirements with respect to a motion to amend a pleading.  California Rules of Court, Rule 3.1324(b) states that a separate declaration must accompany the motion for leave to amend and such declaration 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.

            In connection with its moving papers, Cross-Complainant presents the declaration of its counsel, Emerson B. Luke (“Luke).  The declaration of Luke does not indicate: (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) exactly when the facts giving rise to such amended allegations were discovered; or (4) why the request for amendment was not made sooner.  In connection with the reply brief, Luke declares that any failure by Gaumont to fully comply with California Rules of Court, Rule 3.1324 was inadvertent.  (Luke Reply Decl. at ¶ 4.)

            The Court finds that Cross-Complainant has failed to comply with the mandatory requirements set forth in California Rules of Court, Rule 3.1324.  The Bettencourt case that Cross-Complainant cites in its reply brief for the proposition that non-compliance with California Rules of Court, Rule 3.1324 is harmless and not dispositive for purposes of is motion is not persuasive.  (Bettencourt v. Hennessy Industries, Inc. (2012) 205 Cal.App.4th 1103, 1111.)  Bettencourt did not ever mention a party not complying with California Rules of Court, Rule 3.1324 for purposes of leave to amend a pleading.  (Id.)  In fact, the Bettencourt opinion never discussed California Rules of Court, Rule 3.1324.  Bettencourt discussed leave to amend in the context of a motion for judgment on the pleadings.

            Therefore, the Court DENIES Cross-Complainant’s motion for leave to file a Third Amended Cross-Complaint.

Moving Party is ordered to give notice of this ruling.