Zeng

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 YIAN ZENG, Case No.: 3:24-cv-02026-H-KSC

12 Plaintiff,

ORDER

13 v.

14 CALIDI BIOTHERAPEUTICS, INC., a

(1) GRANTING PLAINTIFFS’

Nevada corporation; CALIDI

MOTION FOR LEAVE TO FILE

15 SECOND AMENDED COMPLAINT;

BIOTHERAPEUTICS, INC., a Delaware

16 corporation; and ALLAN J. CAMAISA,

[Doc. No. 27]

Defendants.

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(2) VACATING DEFENDANTS’

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MOTION FOR SUMMARY

19 JUDGMENT; AND

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[Doc. No. 28]

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(3) CONTINUING FINAL

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PRETRIAL CONFERENCE

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On January 8, 2026, Plaintiff Yiang Zeng filed a motion for leave to file a second

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amended complaint. (Doc. No. 27.) On January 8, 2026, Defendants Calidi

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Biotherapeutics, Inc.; Calidi Biotherapeutics, Inc; and Allan J. Camaisa (collectively,

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“Defendants”) filed a joint motion for summary judgment. (Doc. No. 28.) On February 9,

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2026, Defendants filed their response in opposition to Plaintiff’s motion. (Doc. No. 30.)

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1 On February 9, 2026, the Court took Plaintiff’s motion under submission. (Doc. No. 31.)

2 For the reasons below, the Court grants Plaintiff’s motion for leave to file a second

3 amended complaint and vacates Defendants’ motion for summary judgment as premature.

4 Background

5 I. Factual Background

6 The following factual background is taken from the allegations in Plaintiff’s First

7 Amended Complaint. (Doc. No. 16, Am. Compl.)

8 Plaintiff Yiang Zeng is a dual citizen of The People’s Republic of China and Cyprus.

9 (Id. ¶ 1.) Defendant Calidi Biotherapeutics, Inc. is incorporated in the state of Delaware,

10 with its principal place of business in San Diego (“Calidi Delaware”). (Id.) Defendant

11 Calidi Biotherapeutics, Inc. is incorporated in the state of Nevada, with its principal place

12 of business in San Diego, California (“Calidi Nevada”). (Id.) Defendant Allan J. Camaisa

13 is a citizen of the state of California. (Id.).

14 On February 19, 2022, Plaintiff invested $2,000,000 pursuant to a Simple

15 Agreement for Future Equity (“SAFE”) issued by Calidi Nevada in anticipation of an

16 eventual merger. (Id. ¶¶ 2, 5.) Plaintiff’s understanding was that, once merged, he would

17 immediately acquire an equity position in the surviving entity pursuant to a conversion

18 formula outlined in the SAFE. (Id.)

19 On September 12, 2023, Calidi Nevada merged with an existing publicly traded

20 company incorporated in the state of Delaware, now known as Calidi Delaware. (Id. ¶¶ 3,

21 6.) That same day, Plaintiff received 225,313 shares of Calidi Delaware common stock.

22 (Id. ¶ 8.) Following the merger, Calidi Delaware common stock price began falling. (Id.

23 ¶ 9.) On July 15, 2024, because of a 1-for-10 reverse split of the outstanding shares of

24 Calidi Delaware’s common stock, Plaintiff’s Calidi Delaware common stock shareholdings

25 were reduced to 25,531 shares now trading around $0.90 per share. (Id. ¶ 8.)

26 Plaintiff claims that Defendant Camaisa, former Chief Executive Officer and former

27 Chairman of the Board of Directors of Calidi Nevada and Calidi Delaware (collectively,

28 “Calidi”), was responsible for creating and promoting Calidi Nevada to raise money from

1 SAFE investors. (Id. ¶ 4.) Plaintiff alleges that Defendant Camaisa appropriated Plaintiff’s

2 $2,000,000 SAFE investment to repay executive and board members’ personal loans to

3 Calidi Nevada as opposed to providing capital to fund Calidi operations and growth. (Id.

4 ¶¶ 7, 10, 23-25.) Plaintiff further alleges that Defendant Camaisa’s malfeasance and

5 misfeasance was fueled by his regular drunkenness and intoxication while at work. (Id. ¶¶

6 10, 19.)

7 II. Procedural History

8 On October 29, 2024, Plaintiff filed a complaint seeking recission of his investment

9 in Calidi. (Doc. No. 1, Compl.) In particular, Plaintiff alleged claims for (1) securities

10 fraud in violation of Cal. Corp. Code § 25401; (2) breach of the covenant of good faith and

11 fair dealing; and (3) breach of fiduciary duty. (Id. ¶¶ 8-26.) On February 10, 2025,

12 Defendants filed their answer. (Doc. No. 7.)

13 On March 17, 2025, Defendants served Plaintiff with their initial disclosures. (Doc.

14 No. 11.) On April 2, 2025, Defendants served Plaintiff with additional documents as a

15 continuation of its initial disclosures. (Doc. No. 30 at 2; Doc. No. 30-1, Elia Decl. ¶ 4.)

16 The April 2, 2025 production included Calidi’s Form S-1, filed with the Securities and

17 Exchange Commission (“SEC”) on October 6, 2023. (Id. ¶ 4; Doc. No. 30, Ex. B.)

18 On April 9, 2025, the Court held the Early Neutral Evaluation and Case Management

19 Conference. (Doc. No. 14.) That same day, the Court issued a scheduling order which

20 stated, in part, that “[a]ny motion to join other parties, to amend the pleadings, or to file

21 additional pleadings must be filed by May 9, 2025.” (Doc. No. 15 at 1.) On May 9, 2025,

22 Plaintiff filed his First Amended Complaint. (Doc. No. 16, Am. Compl.) On May 30,

23 2025, Defendants filed their amended answer. (Doc. No. 17.)

24 On July 11 and July 14, 2025, Defendants provided a supplemental production of

25 documents. (Doc. No. 30 at 3; Doc. No. 30-1, Elia Decl. ¶¶ 5, 6.) The July 11, 2025

26 production contained Calidi Delaware’s 10-K, filed with the SEC on March 31, 2025. (Id.

27 ¶ 5; Doc. No. 30, Ex. C.) The July 14, 2025 production contained Edoc Acquisition

28 Corporation’s (“Edoc”) Form S-4 registration statement, filed with the SEC on March 16,

1 2022. (Doc. No. 30-1, Elia Decl. ¶ 7; Doc. No. 30, Ex. D.)

2 On July 16, 2025, Plaintiff took the deposition of Defendant Allan Camaisa. (Doc.

3 No. 27 at 4.) On July 18, 2025, Plaintiff took the deposition of Tony Kalajian, Calidi’s

4 Chief Accounting Officer and Interim Financial Officer from March 2021 to October 2023.

5 (Id.) On September 5, 2025, Plaintiff took the deposition of Andrew Jackson, Calidi’s

6 Chief Financial Officer from October 2023 to present. (Id.)

7 On September 23, 2025, the Court held a telephonic Discovery Conference

8 regarding the parties’ discovery disputes. (Doc. No. 26.) On October 10, 2025, Defendants

9 produced another batch of documents. (Doc. No. 30-1, Elia Decl. ¶ 9.) On November 18,

10 2025, Plaintiff took the deposition of Stephen Thesing, Calidi’s Chief Business Officer

11 from December 2021 to November 2024. (Doc. No. 27 at 1, 17.)

12 By the present motion, Plaintiff moves pursuant to Federal Rule of Civil Procedure

13 15(a)(2) for leave to file a second amended complaint. (Doc. No. 27.) Specifically,

14 Plaintiff moves to amend its complaint to “conform the complaint to the evidence adduced

15 in discovery” pursuant to Fed. R. Civ. P. 15(b)(2). (Id. at 1-2.) Whereas Plaintiff’s original

16 and First Amended Complaints focused primarily on Defendant Camaisa’s alleged role in

17 appropriating Plaintiff’s investment, (see generally Doc. Nos. 1, 16), the Proposed Second

18 Amended Complaint alleges that Calidi was insolvent at the time Plaintiff entered into the

19 SAFE Agreement and that Defendants misrepresented its financial condition to him. (See,

20 e.g., Doc. No. 27, Proposed SAC at 12-19.)

21 Discussion

22 I. Legal Standards

23 Federal Rule of Civil Procedure 15(a) allows a party leave to amend its pleading

24 once as a matter of right prior to service of a responsive pleading. Fed. R. Civ. P. 15(a).

25 Thereafter, “a party may amend that party’s pleading only by leave of the court or by

26 written consent of the adverse party and leave shall be freely given when justice so

27 requires.” Id. The Ninth Circuit has instructed that this policy is “‘to be applied with

28 extreme liberality.’” Hoang v. Bank of Am., N.A., 910 F.3d 1096, 1102 (9th Cir. 2018)

1 (quoting Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003)).

2 The decision whether to grant leave to amend “is entrusted to the sound discretion of the

3 trial court.” Pisciotta v. Teledyne Indus., 91 F.3d 1326, 1331 (9th Cir. 1996). The court

4 may deny leave to amend for “good reason,” which normally involves an analysis of the

5 factors articulated in Foman: undue delay, bad faith, futility of amendment, or undue

6 prejudice to the opposing party. Foman v. Davis, 371 U.S. 178, 182 (1962).

7 However, “when a district court enters a pretrial scheduling order establishing a

8 deadline for amending the pleadings, as the court did here, a motion to amend is governed

9 by Rule 16(b).” Kamal v. Eden Creamery, LLC, 88 F.4th 1268, 1277 (9th Cir. 2023)

10 (citing Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607–08 (9th Cir. 1992)).

11 Under Rule 16(b), a plaintiff “must show good cause” for failing to amend the complaint

12 “before the time specified in the scheduling order expired.” Coleman v. Quaker Oats Co.,

13 232 F.3d 1271, 1294 (9th Cir. 2000). “Rule 16(b)’s ‘good cause’ standard primarily

14 considers the diligence of the party seeking the amendment.” Johnson, 975 F.2d at 609.

15 Diligence is generally determined by examining the time between the moving party's

16 discovery of new facts and its asking leave of the court to file an amended

17 pleading. See, e.g., Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087–88 (9th Cir.

18 2002); Coleman, 232 F.3d at 1294–95. Thus, to amend a pleading after a scheduling order

19 deadline, the moving party must both demonstrate good cause to modify the scheduling

20 order under Rule 16(b), and show that amendment is warranted under Rule 15(a). Johnson,

21 975 F.2d at 608.

22 II. Analysis

23 A. Good Cause Exists to Modify Scheduling Order

24 The Scheduling Order set May 9, 2025 as the cutoff date for amending the pleadings.

25 (Doc. No. 15 at 1.) Because Plaintiff seeks to amend the complaint eight months past the

26 cutoff date, it must show good cause. See Fed. Rule Civ. P. 16(b); Johnson, 975 F.2d at

27 607–08.

28 Plaintiff asserts good cause exists because the “purpose for filing an amended

1 complaint is to conform the complaint to the evidence adduced in discovery,” which did

2 not end until December 5, 2025. (See Doc. No. 27; see also Doc. No. 15 at 3.) In support

3 of this, Plaintiff lists a variety of sources including depositions of Defendants’ current and

4 former employees through November 2025; statements by Defendants’ Chief Executive

5 Officer, Chief Financial Officer, Chief Accounting Officer, and Chief Business Officer;

6 and documents produced by Defendants on October 10, 2025, following a Discovery

7 Conference on September 23, 2025. (Doc. No. 27 at 1, 2, 4.)

8 Defendants oppose on the grounds that Plaintiff’s proposed amendment is untimely,

9 prejudicial, and futile. (See Doc. No. 30.) Defendants counter that “if Plaintiff had been

10 diligent in his review, he would have known Calidi’s financial status well before the

11 October 10, 2025 production.” (Id. at 8.) Defendants claim that the information Plaintiff

12 relies upon for his Proposed Second Amended Complaint was produced on April 2, 2025

13 as part of Defendants’ initial disclosures and produced again on July 11, 2025. (Id. at 7-

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15 Plaintiff maintains that the factual basis for the amendments was not available

16 through discovery until Defendants’ October 10, 2025 production of Calidi’s quarterly

17 financial statements for 2022 and 2023 and “the taking of Stephen Thesing’s deposition on

18 November 18, 2025”. (Doc. No. 27 at 1, 2, 4.) The Court is inclined to agree as Plaintiff

19 is entitled to explore its claims through discovery prior to amending its pleadings to assert

20 them. “Waiting to file the motion until after obtaining corroborating deposition testimony

21 is [] sufficient to meet the good cause requirement of Federal Rule of Civil

22 Procedure 16(b).” The Bd. of Trustees of Leland Stanford Junior Univ. v. Roche

23 Molecular Sys., Inc., 2008 WL 624771, at *7 n.7 (N.D. Cal. Mar. 4, 2008); see

24 also Elec. Scripting Prod., Inc. v. HTC Am. Inc., 2021 WL 2530210, at *3 (N.D. Cal. June

25 21, 2021). Further, waiting to amend a complaint until a strong evidentiary basis has been

26 developed is preferable to prematurely asserting those claims based on a limited record that

27 may or may not support them.

28 Plaintiff’s delay also appears reasonable in light of ongoing discovery disputes

1 between the parties. On September 23, 2025, the Court held a telephonic Discovery

2 Conference to resolve issues regarding Defendants' responses to two sets of written

3 document requests served by Plaintiff on July 27, 2025 and August 4, 2025. (Doc. No.

4 26.) Following the Conference, the Court instructed Defendants to produce responsive

5 documents or, in the alternative, provide full and complete written responses explaining

6 why any documents were being withheld on or before October 14, 2025. (Id.) Given these

7 discovery disputes and the parties’ continued depositions through November 2025, the

8 Court will not deprive Plaintiff of the opportunity to amend its complaint for lack of

9 diligence. See, e.g., U.S. Equal Emp. Opportunity Comm'n v. Bay Club Fairbanks Ranch,

10 LLC, 475 F. Supp. 3d 1099, 1102 (S.D. Cal. 2020) (finding good cause to amend the

11 scheduling order eight months after the deadline for amendments where new information

12 was uncovered through depositions and admissions in August, November, and December).

13 The Court also finds good cause to relieve Plaintiff of the original deadline for

14 amendments because doing so would be consistent with the courts’ strong preference for

15 resolving cases on the merits. Accordingly, the Court finds good cause to relieve Plaintiff

16 from the deadline set forth in the original scheduling order deadline and will consider

17 Plaintiff’s motion for leave to amend on its merits. See Fru-Con Const. Corp. v.

18 Sacramento Mun. Util. Dist., 2006 WL 3733815, at *5 (E.D. Cal. Dec. 15,

19 2006) (collecting cases) (“Allowing parties to amend [the scheduling order] based on

20 information obtained through discovery is common and well established.”).

21 B. Leave to Amend Should Be Granted

22 Because Plaintiff has established good cause to modify the scheduling order to

23 extend the deadline to request leave to amend the pleadings, the Court now turns to

24 application of the Rule 15(a) standard in determining whether leave to amend should be

25 granted here.

26 “In general, a court should liberally allow a party to amend its pleading.” Sonoma

27 Cnty. Ass'n of Retired Emps. v. Sonoma Cnty., 708 F.3d 1109, 1117 (9th Cir. 2013).

28 “Courts may decline to grant leave to amend only if there is strong evidence of ‘undue

1 delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure

2 deficiencies by amendments previously allowed, undue prejudice to the opposing party by

3 virtue of allowance of the amendment, [or] futility of amendment, etc.’” Sonoma Cnty.,

4 708 F.3d at 1117 (quoting Foman, 371 U.S. at 182). “[I]t is the consideration of prejudice

5 to the opposing party that carries the greatest weight.... Absent prejudice, or a strong

6 showing of any of the remaining Foman factors, there exists a presumption under Rule

7 15(a) in favor of granting leave to amend.” Eminence Cap., LLC, 316 F.3d at 1052.

8 As noted above, Defendants oppose Plaintiff’s motion on the grounds of undue

9 delay, prejudice, and futility. None of these arguments provide a basis for denying

10 Plaintiff’s motion.

11 1. Undue Delay

12 As discussed above in the Rule 16 analysis, Plaintiff’s delay is reasonable in light of

13 the discovery disputes and depositions through November 2025. Plaintiff was diligent in

14 seeking leave to amend once the factual bases for the proposed amendments were

15 uncovered. Therefore, consideration of this factor does not weigh against granting leave

16 to amend.

17 2. Previous Amendments

18 Plaintiff seeks leave to file a second amended complaint. (Doc. No. 27.) Plaintiff

19 filed his first amended complaint as a matter of course. (Doc. No. 16.) Thereafter,

20 Defendants answered. (Doc. No. 17.) Plaintiff's proposed amendments are different that

21 his previous amendment, and there is no history of repeated failures to cure pleading

22 deficiencies in this case. Thus, consideration of this factor does not weigh against granting

23 leave to amend.

24 3. Undue Prejudice

25 Defendants argue in their opposition that they will be prejudiced because discovery

26 has closed, and depositions have been completed. (Doc. No. 30 at 10.) “Prejudice is the

27 ‘touchstone of the inquiry under rule 15(a).’” Eminence, 316 F.3d at 1052. “Prejudice is

28 generally mitigated where the case is still in the discovery stage, no trial date is pending

1 and no pretrial conference has occurred.” Calderon v. Tulare Reg'l Med. Ctr., 2018 WL

2 4473626, at *5 (E.D. Cal. Sept. 17, 2018). The opposing party has the burden of showing

3 prejudice. DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987).

4 Defendants have not demonstrated specific instances of hardship that support its

5 claim of substantial prejudice. Other than vaguely asserting in conclusory fashion that it

6 will be “prejudiced if it were not given an opportunity to conduct necessary discovery”,

7 Defendants have not explained nor shown how the proposed amendments would

8 necessitate duplication of its discovery efforts undertaken thus far. (See Doc. No. 30.)

9 Defendants argue that they will need to reopen fact discovery for the purpose of continuing

10 Plaintiff’s deposition. (Id. at 10.) This ordinary burden of litigation is not substantially

11 prejudicial. There is no pending trial date, and no final pretrial conference has been

12 held. (See Doc. No. 15.) Defendants do not assert that any major case deadlines must be

13 changed due to Plaintiff’s proposed amendment.

14 Moreover, as a review of the proposed second amended complaint suggests,

15 Plaintiff’s amendments involve much of the same operative facts, witnesses, and

16 documentary evidence. (See Doc. Nos. 1, 16, 27.) Thus, the court concludes that

17 Defendants have failed to meet their burden of showing that they would suffer “substantial

18 prejudice” or a “substantial negative effect” if further leave to amend were to be granted.

19 Consideration of this factor does not weigh against granting leave to amend.

20 4. Futility

21 A proposed amended claim is futile if it would be immediately “subject to

22 dismissal.” Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir. 1998)). Leave

23 to amend should only be denied based on futility if the court “determines that the pleading

24 could not possibly be cured by the allegation of other facts.” Ebner v. Fresh, Inc., 838 F.3d

25 958, 968 (9th Cir. 2016) (overruled on other grounds) (citing Doe v. United States, 58 F.3d

26 494, 497 (9th Cir. 1995)). Where a proposed amended claim involves complicated factual

27 or legal issues, it is generally preferable for the sufficiency of that claim to be addressed

28 on a fully briefed motion to dismiss rather than under the more circumscribed Rule

1 || 15(a) “futility” analysis. See Green Valley Corp. v. Caldo Oil Co., 2011 WL 1465883, at

2 ||*6 (N.D. Cal. Apr. 18, 2011) (noting “the general preference against denying a motion

3 || for leave to amend based on futility”). Arguments concerning the sufficiency of the

4 proposed pleadings, even if meritorious, are better left for briefing on a motion to

5 dismiss. Lillis v. Apria Healthcare, 2012 WL 4760908, at * 1 (S.D. Cal. Oct. 5, 2012).

6 Here, the Court acknowledges that Defendants raise challenges to Plaintiff's

7 || interpretation of the SAFE Agreement and his theory of insolvency. At this stage, it is not

8 ||clear that Plaintiff's causes of action are futile such that no set of facts could constitute a

9 || valid cause of action. Because the Court will allow amendment of the Plaintiff's complaint,

10 || the factual allegations may shift and Defendants’ challenges are better suited for a briefing

11 a future motion to dismiss or motion for summary judgment. Accordingly, the

12 || Court grants leave to amend the causes of action.

13 Conclusion

14 For the reasons above, the Court grants Plaintiff's Motion to Amend. Plaintiff must

15 || file his second amended complaint within seven (7) days from the date this order is filed.

16 || Defendants must file their response within thirty (30) days from the filing of the second

17 |}amended complaint. In light of the amendment, the Court vacates Defendants’ motion for

18 |}summary judgment as moot and continues the Final Pretrial Conference for six months.

19 || Defendants may file a motion for summary judgment as to Plaintiff's Second Amended

20 || Complaint.

21 IT IS SO ORDERED.

22 || DATED: March 2, 2026 -

[ \WuLen | dal

MARILYN. HUFF, Distri ge

UNITED STATES DISTRICT COURT

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