Motion to amend judgment
In determining whether to allow a party to amend its pleading, “ ‘trial courts should be guided by two general principles: (1) whether facts or legal theories are being changed and (2) whether the opposing party will be prejudiced by the proposed amendment. Frequently, each principle represents a different side of the same coin: If new facts are being alleged, prejudice may easily result because of the inability of the other party to investigate the validity of the factual allegations while engaged in trial or to call rebuttal witnesses.
If the same set of facts supports merely a different theory—for example, an easement as opposed to a fee—no prejudice can result.’ [Citation.] ‘The basic rule applicable to amendments to conform to proof is that the amended pleading must be based upon the same general set of facts as those upon which the cause of action or defense as originally pleaded was grounded.’ [Citation.]” (Garcia v. Roberts (2009) 173 Cal.App.4th 900, 910.)
D. Merits -- Motion for Leave to Amend
As with its request for relief from the dismissals of Mugel and PMA, the request for leave to amend is denied because the Motion was not accompanied by a proof of service. In addition, the Motion does not comply with the requirements of rule 3.1324 of the Rules of Court.
Next, the proposed First Amended Complaint names Mugel as a defendant. However, and as discussed, the motion to set aside Mugel’s dismissal is now time-barred.
Further, Plaintiff has filed two motions, first, a motion for relief from dismissals, and second, a motion for leave to file a first amended complaint, yet it only paid one filing fee of $60.00. It should be required to pay two filing fees.
For the foregoing reasons, the Court denies the request for leave to amend.
Moving party to give notice.
5 Activate Clean Energy, LLC TENTATIVE RULING: vs. DMX Engineering, LLC For the reasons set forth below, Plaintiffs Activate Clean Energy, LLC and Rasa Energy, Inc.’s motion to amend judgment is DENIED without prejudice.
Under Code of Civil Procedure section 187, a court has inherent power to use “all the means necessary” to carry its jurisdiction into effect. This includes amending a judgment to add a nonparty alter ego as a judgment debtor. (Rubio v. CIA Wheel Group (2021) 63 Cal.App.5th 82, 102-103
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The amendment does not add a new defendant; it merely sets forth the true name of the real defendant. (Rubio v. CIA Wheel Group, supra, 63 Cal.App.5th at 101; Musik v. D’Arco, supra, 197 Cal.App.4th at 1072.) “The decision to grant an amendment lies in the sound discretion of the trial court. [Citation.] Great liberality is allowed in granting such amendments.” (Relentless Air Racing, LLC v. Airborne Turbine Ltd. Partnership (2013) 222 Cal.App.4th 811, 815.)
To prevail in a motion to add judgment debtors, the moving party must show that “(1) the parties to be added as judgment debtors had control of the underlying litigation and were virtually represented in that proceeding; (2) there is such a unity of interest and ownership that the separate personalities of the entity and the owners no longer exist; and (3) an inequitable result will follow if the acts are treated as those of the entity alone.” (Relentless, supra, 222 Cal.App.4th at pp. 815–816.)
“Factors for the court to consider include identical equitable ownership, comingling of funds, use of the same offices, disregard of formalities, and use of one entity as a mere shell for the affairs of another.” (Butler America, LLC v. Aviation Assurance Co., LLC (2020) 55 Cal.App.5th 136, 146.) “An important factor in determining alter ego liability is that a corporate entity is so undercapitalized that it is likely to have no sufficient assets to meet its debts.” (Ibid.) “When considering the application of the alter ego doctrine to a particular situation, it must be remembered that it is an equitable doctrine and, though courts have justified its application through consideration of many factors, their basic motivation is to assure a just and equitable result.” (Alexander v. Abbey of the Chimes (1980) 104 Cal.App.3d 39, 48.)
Here, Plaintiffs seek to amend the default judgment entered against Defendant DMX Engineering LLC (“DMX”) on March 11, 2025, to add Defendant Igor Gorovenko, in his individual capacity and as the alter ego of DMX. However, Plaintiffs have not established that Defendant Gorovenko controlled the litigation that resulted in Defendant DMX’s default judgment. A defendant cannot be bound by a default judgment against codefendants, taken in the co-defendant’s
absence and without an opportunity to present the co-defendant’s case. (Taliaferro v. Hays (1961) 188 Cal.App.2d 235, 236). That DMX did not file an answer or respond to Plaintiffs’ complaint cannot be imputed on Gorovenko.
Indeed, this action is still currently pending against Defendant Gorovenko, who has filed an answer, actively participated in his own defense and has even asserted his own affirmative claims. No trier of fact has adjudicated Plaintiffs’ claims against Gorovenko or Gorovenko’s claims against Plaintiffs. Plaintiffs cannot circumvent litigation against Gorovenko by attempting to take advantage of the default judgment against DMX, with which Gorovenko was not personally involved.
To the extent that Plaintiffs wish to establish that Gorovenko is the alter ego of DMX, Plaintiffs may do so in this litigation, present the evidence to the trier of fact, and allow a trier of fact to determine that question of fact. The court finds that the summary procedures of amending a judgment, which relies on hearsay, no cross-examination, and without the benefit of allowing a trier of fact to carefully weigh and consider all of the evidence, particularly given that active litigation is still pending against Gorovenko, to be improper at this time.
The court declines to rule on Plaintiffs’ evidentiary objections as unnecessary for the court’s determination on this motion.
The motion is, therefore, DENIED.
Plaintiffs to give notice.
6 Diyar Irvine, TENTATIVE RULING: LLC vs. Elzoheiry Motions for Leave to Amend Answers
Defendant Loan Funders, LLC, Defendant Athene Annuity and Life Company, and Defendant Andrew Abas move for leave to file a First Amended Answer to the First Amended Complaint filed by Plaintiffs Diyar Irvine, LLC, Green City Development, LLC, Sadek Elsewedy, and Ahmed Elsewedy. For the following reasons, the unopposed motions are GRANTED.
The Court may, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading. (Code Civ. Proc. § 473(a)(1).) California Rules of Court, rule 3.1324 governs a motion for leave to amend.