Crowe vs. Dang

Defendant to give notice.

9 Business OFF CALENDAR Buyers, Inc. vs. Thomas Lee Food and Cuisine, LLC 10 Crowe vs. TENTATIVE RULING: Dang Motion for Relief

Plaintiffs Lowell R. Crowe, Jr. and Tamela Crowe move for leave to file a Second Amended Complaint (SAC). Defendants Natasha Benesch and Sameer Dang oppose the motion. For the following reasons, the motion is GRANTED. Plaintiffs shall file the SAC by September 9, 2026.

On September 24, 2025, the Court sustained the demurrer filed by Defendant Natasha Benesch Dang and the joinder filed by Defendant Sameer Dang to the seventh cause of action in the First Amended Complaint (FAC). (ROA 97.) The seventh cause of action was for breach of contract. While the FAC claimed to have attached as Exhibit 1 a copy of the Residential Purchase Agreement, the FAC did not contain any exhibits. Thus, the Court sustained the demurrer to that cause of action. (Id.) The September 24, 2025, minute order stated, “Should Plaintiff desire to file an amended complaint that addresses the issues in this ruling, Plaintiff shall file and serve the amended complaint within 30 days of service of the notice of ruling.”

Plaintiff did not timely file a Second Amended Complaint.

In the meantime, other Defendants – Elite Group Property Inspection Service, Inc. and Don McMahon – moved to compel arbitration. On January 28, 2026, this Court granted the motion to compel arbitration filed by Defendants Elite Group Property Inspection Service, Inc. and Don McMahon. (ROA 130.) The Court stayed this action pending the outcome of the arbitration between Plaintiffs and Defendants Elite Group Property Inspection Service, Inc. and Don McMahon.

Plaintiff now seeks leave to file a Second Amended Complaint (SAC) to address the Court’s September 24, 2025, ruling. Defendants contend that this motion is prohibited in light of the arbitration stay ordered by the Court.

Effect of Arbitration Stay

“If a court . . . has ordered arbitration of a controversy which is an issue involved in an action or proceeding pending before a court of this State, the court in which such action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies.” (Code Civ. Proc. § 1281.4.)

“The purpose of the statutory stay is to protect the jurisdiction of the arbitrator by preserving the status quo until arbitration is resolved. In the absence of a stay, the continuation of the proceedings in the trial court disrupts the arbitration proceedings and can render them ineffective.” (Heritage Provider Network, Inc. v. Super. Ct. (2008) 158 Cal.App.4th 1146, 1152, internal quotes & citations omitted; see also SWAB Financial, LLC v. E*Trade Securities, LLC (2007) 150 Cal.App.4th 1181, 1199-1200, internal quotes omitted [after imposing stay pursuant to CCP section 1281.4, “the trial court’s power to interfere in the pending arbitration was strictly limited,” as “the action at law sits in a twilight zone of abatement with the trial court retaining merely vestigial jurisdiction over matters submitted to arbitration”].)

The instant motion for leave to amend to address the claim against Defendants Natasha Benesch and Sameer Dang (parties who have not yet been ordered to arbitration) does not affect the arbitrator’s jurisdiction over Plaintiffs’ claims against Defendants Elite Group Property Inspection Service, Inc. and Don McMahon in any way. Therefore, granting the instant motion would not violate the stay under Code Civ. Proc. § 1281.4.

According to the joint statement filed by Plaintiffs and Defendants Elite Group Property Inspection Service, Inc. and Don McMahon, the initial management conference for the arbitration ordered by the Court has not taken place. (ROA 171.)

Plaintiffs now have a pending motion to compel against Defendants Natasha Benesch and Sameer Dang to “coordinate a comprehensive ADR process involving all parties.” (ROA 167.) That motion is scheduled for hearing on November 25, 2026.

Code Civ. Proc. § 473

Plaintiffs’ motion relies on Code Civ. Proc. § 473(b), which provides in pertinent part,

“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. . . .

Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.

The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.”

Defendants contend that the motion is untimely under Code Civ. Proc. § 473(b). That is, Defendants contend that the deadline to file the SAC expired 30 days after service of the notice of September 24, 2025, ruling, and thus the deadline expired on October 27, 2025. (ROA 161.) Plaintiffs filed this motion on April 30, 2026.

However, Code Civ. Proc. § 473(b) does not apply. Section 473(b) applies when a party seeks relief “from a judgment, dismissal, order, or other proceeding taken against him or her.” (Code Civ. Proc. § 473(b).) There was no judgment, dismissal, order, or other proceeding taken against Plaintiffs. (See, e.g., Harlan v. Department of Transportation (2005) 132 Cal.App.4th 868, 875 [“The state characterizes Harlan's late filing as a default, but the fact is that no ‘judgment, dismissal, order or other proceedings’ had been taken against Harlan, so there was nothing from which to relieve it.”].)

“A trial court's determinations to deny leave to file a belated amended pleading ... [or] to dismiss an action under section 581, subdivision (f)(2) ... [is] reviewed for abuse of discretion.” (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603,

612-615.) Courts have broad discretion to accept a late complaint amendment without a noticed motion for relief, or to strike it as untimely. (Bai v. Yip (2024) 107 Cal.App.5th 188, 197; see also Harlan, supra, 132 Cal.App.4th at 873 [“While the court had discretion to require a noticed motion before permitting Harlan to file the second amended complaint late, we think it also had discretion under these circumstances to accept the filing without a noticed motion.”].)

Plaintiffs’ notice of motion alternatively seeks leave to amend under Code Civ. Proc. § 473(a).

The trial court “in furtherance of justice” may allow amendment of a pleading. (Code Civ. Proc., § 473, subd. (a)(1).) There is a strong policy in favor of liberally granting leave to amend. (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 296.) Typically, leave should be granted unless it would prejudice the defendants. (Ibid.)

Defendants have not shown that they will suffer any prejudice from allowing Plaintiffs leave to file the SAC.

Plaintiff is ordered to file the Second Amended Complaint attached as Exhibit “A” to the Russell Declaration within 10 days of this hearing.

Plaintiffs shall give notice of this ruling.

11 Cullen vs. TENTATIVE RULING: Pathway Healthcare Attorney Mitchell R. Garrett’s Application to Appear Pro Hac Vice Services, LLC for Defendants Andrew Turner, Jennifer Miller and Defendant/Cross- Complainant Pathway Healthcare Services, LLC is GRANTED.

The Court finds attorney Mr. Garrett has complied with all the requirements of rule 9.40 of the California Rules of Court.

Moving party shall give notice.

12 Hummer vs. TENTATIVE RULING: Niguel Shores Community Motion to Be Relieved as Counsel of Record Association Attorney Austin Nichter’s unopposed motion to be relieved as counsel of record for Plaintiff Judith Hummer is GRANTED.