Biocorrx, Inc. vs. VDM Biochemicals, Inc.

# Case Name

1 Biocorrx, Inc. Motion to Compel Compliance with Court Order Dated April vs. VDM 10, 2025 Biochemicals, Motion to Compel Compliance Motion to Compel Deposition (Oral or Written) Inc. Motion to Quash Motion to Strike Portions Of Cross-Complaint Motion to Vacate Currently Notice Hearing 2021-01195606 Motion For Leave to File Third Amended Cross-Complaint

Motion to Strike Portions of Second Amended Cross- Complaint

Motion for Leave to file Third Amended Cross-Complaint

Motion to Vacate Hearing Date

Motion to Compel Compliance with Court Order

Motion to Compel Compliance

Motion to Compel Deposition

Motion to Quash

The motion by Plaintiff/Cross-Defendant BioCorRx, Inc. and Cross-Defendants Brady Granier (“Granier”), BioCorRx Pharmaceuticals, Inc., Jeffrey M. Witkin, and Joseph Galligan (collectively, “BioCorRx Parties”) for an order striking paragraphs 138, 141, and 156 and the referenced Exhibit K from the Second Amended Cross-Complaint (“SAXC”) filed by Defendant/Cross-Complainant VDM Biochemicals, Inc. (“VDM”) is GRANTED. VDM’s motion for leave to file the proposed Third Amended Cross-Complaint is DENIED. The

motion by VDM and Defendant David Martirosyan (collectively, “Defendants”) for an order vacating the hearing date on Cross-Defendants two motions to compel (ROA No. 679 and 761) scheduled for October 27, 2025 is MOOT. The parties are ordered to appear and be prepared to discuss the scheduling of the following motions: Granier’s motion to compel Defendant Martirosyan and VDM’s compliance with this Court’s April 10, 2025 Order; Granier’s motion to compel compliance with the agreement of Defendants David Martirosyan and VDM; Plaintiff BioCorRx, Inc.’s motion to compel third party Dr. Vardan Martirosyan to sit for his deposition and produce documents and request for sanctions; and the motion by specially appearing Cross-Defendant Louis C. Lucido (“Lucido”) to quash the summons served on Lucido.

MOTION TO STRIKE

Pursuant to Code of Civil Procedure section 436, the Court may:

(a) Strike out any irrelevant, false, or improper matter inserted in any pleading.

(b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.

“The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).)

“[J]udges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their

truth.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)

Paragraphs 138 and 141 and Exhibit K

The Court has already found the allegations in paragraphs 138 and 141 and the information in Exhibit K to be protected by the attorney-privilege. The Court placed the unredacted SAXC under seal and ordered VDM to file a redacted SAXC that redacts paragraphs 138, 141, and Exhibit K. (August 18, 2025 Minute Order.) The motion to strike these two paragraphs and Exhibit K is granted without leave to amend.

Paragraph 156

Paragraph 156 alleges Plaintiff’s subsidiary BioCorRx Pharmaceuticals purchased a brand name prescription medication called Lucemyra and the consideration paid. VDM did not show how this drug or the allegations support the sixth cause of action for violation of B&P sections 17200 and 17500 (or any other cause of action alleged in the SAXC). Accordingly, the motion is granted with 15 days leave to amend. The Court reminds the parties that leave to amend is limited to the purpose of alleging BioCorRx entities and VDM are competitors operating in the same therapeutic space and operate in the same market segment, which VDM contends is the purpose of the allegations in paragraph 156. (Opposition, 5:6-25.)

MOTION FOR LEAVE TO FILE TAXC

VDM seeks leave to file a third amended cross-complaint (“TAXC”). VDM’s proposed TAXC adds factual allegations to support VDM’s fraud cause of action against Lucido and Galligan, deletes the seventh cause of action for statutory unfair competition under California Business and Professions Code sections 17200 and 17500, and adds a new cause of action for misappropriation of trade secrets in violation of Civil Code sections 3426-3426.11.

Motions for leave to amend pleadings are directed to the sound discretion of the court. “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading.” (Code Civ. Proc., § 473, subd. (a)(1); see also Code Civ. Proc., § 576.)

The liberal policy of permitting amendments is not without limitation or qualification. The policy of liberality in permitting amendments applies only where no prejudice is shown to the adverse party. An opposing party which can show inexcusable delay and probable prejudice leads to a denial of the motion to amend. (Magpali v. Farmers Grp., Inc. (1996) 48 Cal.App.4th 471, 486-487; see also Hulsey v. Koehler (1990) 218 Cal.App.3d 1150, 1159.)

The motion must be accompanied by a copy of the proposed amended pleading and a supporting declaration explaining: “(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.” (Cal. Rules of Ct., Rule 3.1324(b).)

The motion must 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 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 Ct., Rule 3.1324(a)(2)-(3).)

“A plaintiff or cross-complainant may not seek to subvert or avoid a ruling on an anti-SLAPP motion by amending the challenged complaint or cross-complaint in response to the motion.” (JKC3H8 v. Colton (2013) 221 Cal.App.4th 468, 477- 478.)

A pleading that “is stricken by a successful anti-SLAPP motion cannot try again with an amended complaint. There is no such thing as granting an anti-SLAPP motion with leave to amend.” (Dickinson v. Cosby (2017) 17 Cal.App.5th 655, 676.) An “anti-SLAPP is designed as a final remedy with no second chances.” (Id., at 679.) However, claims that are “unaffected by the anti-SLAPP motion might be able to go forward.” (Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, 646.)

VDM’s motion for leave seeks to remove language from the SAXC to comply with the Court’s disqualification order, delete the seventh cause of action for unfair competition, and replace it with a cause of action for misappropriation of trade secrets in violation of California Civil Code sections 3426 through 3426.11. (Thomas Decl., ¶¶ 5-6.) The proposed TAXC also adds additional factual allegations against Lucido and Galligan; however, that is not discussed in the supporting declaration or memorandum. (Id., Exhibit B, ¶¶ 14, 18, 84, 85, and 138.)

VDM concedes that “[a]t most, then, the amendment removes one alternative prong-one argument—the one built on the very material Cross Defendants have moved to strike and redacted from their own public filing.” (Reply, 4:20-22.) VDM also previously informed Cross-Defendants that the

TAXC would moot the anti-SLAPP. (Katz Decl., ¶2, Exhibit A, Section B [at page 5 of PDF].)

The new allegations attempt to establish personal liability against Galligan and Lucido and support the fourth cause of action for fraud, which the Court found is subject to SLAPP. Accordingly, the motion to add the additional factual allegations is denied.

VDM contends the proposed deletions are the same as the paragraphs at issue in the disqualification motion and the same as the proposed paragraphs Cross-Defendants sought to strike in their motion to strike. On August 18, 2025, the Court granted Plaintiff’s motion to seal and placed VDM’s unredacted SAXC under seal and ordered VDM to file a redacted SAXC that redacted paragraphs 138, 141, and Exhibit K. (August 18, 2025 Minute Order.) The Court’s March 16, 2026 Order granting the disqualification motion also references Exhibit 6 in Exhibit K. In light of the ruling above, the motion for leave to delete the paragraphs that the Court found was privileged is denied as moot. The Court notes the proposed TAXC includes a redacted copy of Exhibit K, with exhibit 6 redacted, but still references Exhibit K in the TAXC.

The hearing on this motion was continued to allow VDM to comply with Rule 3.1324. VDM’s supplemental papers fail to sufficiently address VDM’s request to replace the seventh cause of action for statutory unfair competition under California Business and Professions Code sections 17200 and 17500 with a new cause of action for misappropriation of trade secrets in violation of Civil Code sections 3426-3426.11. Although VDM included the language to be deleted and added for the seventh cause of action, and noted the addition in the supporting and supplemental declarations, VDM did not otherwise comply with Rule 3.1324 with respect to the replacement of the seventh cause of action. VDM’s supporting and supplemental declarations stated the effect of

the amendment was to remove the statutory unfair competition cause of action and replace it with a cause of action for misappropriation of trade secrets. (Thomas Decl., ¶ 6; Thomas Supp. Decl., ¶ 6.) VDM did not address why this amendment is necessary and proper, when facts giving rise to the amended allegations were discovered, why the request for amendment was not made earlier.

Accordingly, VDM’s motion is denied.

MOTION TO VACATE HEARINGS

The motion by VDM and Martirosyan (collectively, “Defendants”) for an order continuing two hearings that were scheduled for October 27, 2025 is MOOT. On October 21, 2025, the Court continued these two hearings at issue pursuant to the parties’ stipulation. (ROA No. 986.)

MOTION TO COMPEL COMPLIANCE WITH COURT ORDER, MOTION TO COMPEL COMPLIANCE WITH AGREEMENT, MOTION TO COMPEL DEPOSITION, MOTION TO QUASH

The parties disagree with when the anti-SLAPP discovery stay was lifted and when opposition and reply papers must be filed for Granier’s two motions to compel compliance.

On July 14, 2025, the Court continued Lucido’s motion to quash service of VDM’s summons and cross-complaint to allow VDM to conduct limited discovery on jurisdiction. VDM requires time to conduct discovery limited to

jurisdiction of Lucido due to the stay arising from Galligan and Lucido’s filing of their anti-SLAPP.

Plaintiff BioCorRx, Inc.’s motion to compel third party Dr. Vardan Martirosyan is also continued to allow Plaintiff an opportunity to properly serve the nonparty deponent with notice of the hearing and the moving papers.

The parties are ordered to appear to discuss the rescheduling of these four motions. Briefing will be per Code based on the continued hearing dates.

The Court also notes that on May 29, 2025, the Court ordered:

1) All parties to meet and confer regarding a potential discovery referee; 2) BIOCORRX to produce a proposed order for the Court’s Issuance of an Order Appointing a Discovery Referee for all purposes related to discovery (now and hereafter) per CCP sect. 639 et seq.; 3) BIOCORRX to include in the proposed order the exceptional circumstances that give rise to the appointment of discovery referee per CCP sect. 639, Cal Rules of Ct. 3.922(d)(1), 3.922(d)(2), 3.922 (e) and 3.922(f)(1). 4) BIOCORRX to file this with the court with a “courtesy copy” no later than July 7, 2025. 5) All parties to jointly produce the name of an agreed upon discovery referee with his/her hourly cost. If the parties are unable to agree, each side (not party) are ordered to give no more than three possible names with their attendant hourly cost. This was due no later than July 7, 2025.

A copy of this Minute Order was served on the parties on May 30, 2025.