Vashisht-Rota v. Howell Management Services ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 APARNA VASHISHT-ROTA, an Case No.: 20-CV-321 JLS (KSC) individual, 12 ORDER DENYING WITHOUT Plaintiff, 13 PREJUDICE PLAINTIFF’S MOTION v. FOR LEAVE TO FILE SECOND 14 AMENDED COMPLAINT HOWELL MANAGEMENT SERVICES, 15 a Utah limited liability company; CHRIS (ECF No. 48) 16 HOWELL, an individual; and JUSTIN SPENCER, an individual, 17 Defendants. 18 19 Presently before the Court is Plaintiff Dr. Aparna Vashisht-Rota’s Motion [for] 20 Leave to File Second Amended Complaint (“Mot.,” ECF No. 48). Plaintiff failed to call 21 chambers to obtain a hearing date prior to filing the Motion, as is required under Civil 22 Local Rule 7.1(b). Although the Court would generally set a hearing date and briefing 23 schedule, the Court determines that further briefing is not necessary. 24 Under Federal Rule of Civil Procedure 15(a), a plaintiff may amend her complaint 25 once as a matter of course within specified time limits. Fed. R. Civ. P. 15(a)(1). “In all 26 other cases, a party may amend its pleading only with the opposing party’s written consent 27 or the court’s leave. The court should freely give leave when justice so requires.” Fed. R. 28 Civ. P. 15(a)(2). Courts generally grant leave to amend absent a showing of “undue delay, 1 || bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies 2 ||by amendments previously allowed, undue prejudice to the opposing party by virtue of 3 || allowance of the amendment, [or] futility of amendment.” Foman v. Davis, 371 U.S. 178, 4 (1962). “Rule 15(a) ‘is to be applied with extreme liberality,’ and whether to permit 5 ||amendment is a decision ‘entrusted to the sound discretion of the trial court.’” EFG Bank 6 ||AG, Cayman Branch v. Transam. Life Ins. Co., No. 216CVO8104CASGIJSX, 2019 WL 7 ||5784739, at *3 (C.D. Cal. Nov. 4, 2019) (quoting Morongo Band of Mission Indians vy. 8 || Rose, 893 F.2d 1074, 1079 (9th Cir. 1990); Jordan v. Cty. of Los Angeles, 669 F.2d 1311, 9 || 1324 (9th Cir. 1982)). 10 Here, Plaintiff seeks leave to add four causes of action for (1) theft by false pretenses 11 violation of California Penal Code § 532; (2) fraud by wire, radio, or television in 12 || violation of section 1343 of Title 18 of the United States Code; (3) defamation pursuant to 13 || California Civil Code § 44; and (4) pandering in violation of California Penal Code § 266i. 14 ||See generally ECF No. 48-1. With the exception of the defamation claim, the Court 15 || concludes that the proposed amendments are futile because “[a] private party cannot make 16 |/a claim for violation of a criminal statute.” See Harbord v. MTC Fin. Inc., No. 20-5080 17 ||RJB, 2020 WL 2541989, at *4 (W.D. Wash. May 19, 2020) (citing Aldabe v. Aldabe, 616 18 1089, 1092 (9th Cir. 1980); Sulla v. Horowitz, No. 12-00449 SOM/KSC, 2012 WL 19 4758163, at *3 (D. Haw. Oct. 4, 2012)); accord Perez v. Saxon Mortg. Servs., Inc., No. 20 ||}09cv1001-L(NLS), 2010 WL 1202869, at *2 (citing Aldabe, 616 F.2d at 1092). 21 || Accordingly, the Court DENIES WITHOUT PREJUDICE Plaintiff's Motion. Should 22 || Plaintiff elect to refile to seek leave to add a cause of action for defamation, she must call 23 chambers to secure a hearing date before filing to provide Defendants an opportunity to 24 || respond. 25 IT IS SO ORDERED. 26 ||Dated: August 10, 2020 (een 7 on. Janis L. Sammartino 3g United States District Judge