Zeng v. Calidi Biotherapeutics, Inc. et al

1
3:24-cv-02026-H-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
YIAN ZENG,
Plaintiff,
v.
CALIDI BIOTHERAPEUTICS, INC., a
Nevada corporation; CALIDI
BIOTHERAPEUTICS, INC., a Delaware
corporation; and ALLAN J. CAMAISA,
Defendants.
Case No.: 3:24-cv-02026-H-KSC
ORDER
(1) GRANTING PLAINTIFFS’
MOTION FOR LEAVE TO FILE
SECOND AMENDED COMPLAINT;
[Doc. No. 27]
(2) VACATING DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT; AND
[Doc. No. 28]
(3) CONTINUING FINAL
PRETRIAL CONFERENCE
On January 8, 2026, Plaintiff Yiang Zeng filed a motion for leave to file a second
amended 	complaint. 	(Doc. 	No. 	27.) 	On 	January 	8, 	2026, 	Defendants 	Calidi
Biotherapeutics, Inc.; Calidi Biotherapeutics, Inc; and Allan J. Camaisa (collectively,
“Defendants”) filed a joint motion for summary judgment. (Doc. No. 28.) On February 9,
2026, Defendants filed their response in opposition to Plaintiff’s motion. (Doc. No. 30.)
Case 3:24-cv-02026-H-GC Document 33 Filed 03/02/26 PageID.<pageID> Page 1
of 10

2
3:24-cv-02026-H-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
On February 9, 2026, the Court took Plaintiff’s motion under submission. (Doc. No. 31.)
For the reasons below, the Court grants Plaintiff’s motion for leave to file a second
amended complaint and vacates Defendants’ motion for summary judgment as premature.
Background
I. 	Factual Background
The following factual background is taken from the allegations in Plaintiff’s First
Amended Complaint. (Doc. No. 16, Am. Compl.)
Plaintiff Yiang Zeng is a dual citizen of The People’s Republic of China and Cyprus.
(Id. ¶ 1.) Defendant Calidi Biotherapeutics, Inc. is incorporated in the state of Delaware,
with its principal place of business in San Diego (“Calidi Delaware”). 	(Id.) 	Defendant
Calidi Biotherapeutics, Inc. is incorporated in the state of Nevada, with its principal place
of business in San Diego, California (“Calidi Nevada”). (Id.) Defendant Allan J. Camaisa
is a citizen of the state of California. (Id.).
On 	February 	19, 	2022, 	Plaintiff 	invested 	$2,000,000 	pursuant 	to 	a 	Simple
Agreement for Future Equity (“SAFE”) issued by Calidi Nevada in anticipation of an
eventual merger. (Id. ¶¶ 2, 5.) Plaintiff’s understanding was that, once merged, he would
immediately acquire an equity position in the surviving entity pursuant to a conversion
formula outlined in the SAFE. (Id.)
On September 12, 2023, Calidi Nevada merged with an existing publicly traded
company incorporated in the state of Delaware, now known as Calidi Delaware. (Id. ¶¶ 3,
6.) 	That same day, Plaintiff received 225,313 shares of Calidi Delaware common stock.
(Id. ¶ 8.) Following the merger, Calidi Delaware common stock price began falling. (Id.
¶ 9.) 	On July 15, 2024, because of a 1-for-10 reverse split of the outstanding shares of
Calidi Delaware’s common stock, Plaintiff’s Calidi Delaware common stock shareholdings
were reduced to 25,531 shares now trading around $0.90 per share. (Id. ¶ 8.)
Plaintiff claims that Defendant Camaisa, former Chief Executive Officer and former
Chairman of the Board of Directors of Calidi Nevada and Calidi Delaware (collectively,
“Calidi”), was responsible for creating and promoting Calidi Nevada to raise money from
Case 3:24-cv-02026-H-GC Document 33 Filed 03/02/26 PageID.<pageID> Page 2
of 10

3
3:24-cv-02026-H-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
SAFE investors. (Id. ¶ 4.) Plaintiff alleges that Defendant Camaisa appropriated Plaintiff’s
$2,000,000 SAFE investment to repay executive and board members’ personal loans to
Calidi Nevada as opposed to providing capital to fund Calidi operations and growth. (Id.
¶¶ 7, 10, 23-25.) 	Plaintiff further alleges that Defendant Camaisa’s malfeasance and
misfeasance was fueled by his regular drunkenness and intoxication while at work. (Id. ¶¶
10, 19.)
II. 	Procedural History
On October 29, 2024, Plaintiff filed a complaint seeking recission of his investment
in Calidi. 	(Doc. No. 1, Compl.) 	In particular, Plaintiff alleged claims for (1) securities
fraud in violation of Cal. Corp. Code § 25401; (2) breach of the covenant of good faith and
fair dealing; and (3) breach of fiduciary duty. 	(Id. ¶¶ 8-26.) 	On February 10, 2025,
Defendants filed their answer. (Doc. No. 7.)
On March 17, 2025, Defendants served Plaintiff with their initial disclosures. (Doc.
No. 11.) 	On April 2, 2025, Defendants served Plaintiff with additional documents as a
continuation of its initial disclosures. 	(Doc. No. 30 at 2; Doc. No. 30-1, Elia Decl. ¶ 4.)
The April 2, 2025 production included Calidi’s Form S-1, filed with the Securities and
Exchange Commission (“SEC”) on October 6, 2023. (Id. ¶ 4; Doc. No. 30, Ex. B.)
On April 9, 2025, the Court held the Early Neutral Evaluation and Case Management
Conference. 	(Doc. No. 14.) 	That same day, the Court issued a scheduling order which
stated, in part, that “[a]ny motion to join other parties, to amend the pleadings, or to file
additional pleadings must be filed by May 9, 2025.” (Doc. No. 15 at 1.) On May 9, 2025,
Plaintiff filed his First Amended Complaint. 	(Doc. No. 16, Am. Compl.) 	On May 30,
2025, Defendants filed their amended answer. (Doc. No. 17.)
On July 11 and July 14, 2025, Defendants provided a supplemental production of
documents. 	(Doc. No. 30 at 3; Doc. No. 30-1, Elia Decl. ¶¶ 5, 6.) 	The July 11, 2025
production contained Calidi Delaware’s 10-K, filed with the SEC on March 31, 2025. (Id.
¶ 5; Doc. No. 30, Ex. C.) 	The July 14, 2025 production contained Edoc Acquisition
Corporation’s (“Edoc”) Form S-4 registration statement, filed with the SEC on March 16,
Case 3:24-cv-02026-H-GC Document 33 Filed 03/02/26 PageID.<pageID> Page 3
of 10

4
3:24-cv-02026-H-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2022. (Doc. No. 30-1, Elia Decl. ¶ 7; Doc. No. 30, Ex. D.)
On July 16, 2025, Plaintiff took the deposition of Defendant Allan Camaisa. (Doc.
No. 27 at 4.) 	On July 18, 2025, Plaintiff took the deposition of Tony Kalajian, Calidi’s
Chief Accounting Officer and Interim Financial Officer from March 2021 to October 2023.
(Id.) 	On September 5, 2025, Plaintiff took the deposition of Andrew Jackson, Calidi’s
Chief Financial Officer from October 2023 to present. (Id.)
On September 23, 2025, the Court held a telephonic Discovery Conference
regarding the parties’ discovery disputes. (Doc. No. 26.) On October 10, 2025, Defendants
produced another batch of documents. (Doc. No. 30-1, Elia Decl. ¶ 9.) On November 18,
2025, Plaintiff took the deposition of Stephen Thesing, Calidi’s Chief Business Officer
from December 2021 to November 2024. (Doc. No. 27 at 1, 17.)
By the present motion, Plaintiff moves pursuant to Federal Rule of Civil Procedure
15(a)(2) for leave to file a second amended complaint. 	(Doc. No. 27.) 	Specifically,
Plaintiff moves to amend its complaint to “conform the complaint to the evidence adduced
in discovery” pursuant to Fed. R. Civ. P. 15(b)(2). (Id. at 1-2.) Whereas Plaintiff’s original
and First Amended Complaints focused primarily on Defendant Camaisa’s alleged role in
appropriating Plaintiff’s investment, (see generally Doc. Nos. 1, 16), the Proposed Second
Amended Complaint alleges that Calidi was insolvent at the time Plaintiff entered into the
SAFE Agreement and that Defendants misrepresented its financial condition to him. (See,
e.g., Doc. No. 27, Proposed SAC at 12-19.)
Discussion
I. 	Legal Standards
Federal Rule of Civil Procedure 15(a) allows a party leave to amend its pleading
once as a matter of right prior to service of a responsive pleading. Fed. R. Civ. P. 15(a).
Thereafter, “a party may amend that party’s pleading only by leave of the court or by
written consent of the adverse party and leave shall be freely given when justice so
requires.” 	Id. 	The Ninth Circuit has instructed that this policy is “‘to be applied with
extreme liberality.’” 	Hoang v. Bank of Am., N.A., 910 F.3d 1096, 1102 (9th Cir. 2018)
Case 3:24-cv-02026-H-GC Document 33 Filed 03/02/26 PageID.<pageID> Page 4
of 10

5
3:24-cv-02026-H-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(quoting Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003)).
The decision whether to grant leave to amend “is entrusted to the sound discretion of the
trial court.” Pisciotta v. Teledyne Indus., 91 F.3d 1326, 1331 (9th Cir. 1996). The court
may deny leave to amend for “good reason,” which normally involves an analysis of the
factors articulated in Foman: undue delay, bad faith, futility of amendment, or undue
prejudice to the opposing party. Foman v. Davis, 371 U.S. 178, 182 (1962).
However, “when a district court enters a pretrial scheduling order establishing a
deadline for amending the pleadings, as the court did here, a motion to amend is governed
by Rule 16(b).” 	Kamal v. Eden Creamery, LLC, 88 F.4th 1268, 1277 (9th Cir. 2023)
(citing Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607–08 (9th Cir. 1992)).
Under Rule 16(b), a plaintiff “must show good cause” for failing to amend the complaint
“before the time specified in the scheduling order expired.” Coleman v. Quaker Oats Co.,
232 F.3d 1271, 1294 (9th Cir. 2000). 	“Rule 16(b)’s ‘good cause’ standard primarily
considers the diligence of the party seeking the amendment.” Johnson, 975 F.2d at 609.
Diligence is generally determined by examining the time between the moving party's
discovery 	of 	new 	facts 	and 	its 	asking 	leave 	of 	the 	court 	to 	file 	an 	amended
pleading. 	See, e.g., Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087–88 (9th Cir.
2002); Coleman, 232 F.3d at 1294–95. Thus, to amend a pleading after a scheduling order
deadline, the moving party must both demonstrate good cause to modify the scheduling
order under Rule 16(b), and show that amendment is warranted under Rule 15(a). Johnson,
975 F.2d at 608.
II. 	Analysis
A. 	Good Cause Exists to Modify Scheduling Order
The Scheduling Order set May 9, 2025 as the cutoff date for amending the pleadings.
(Doc. No. 15 at 1.) Because Plaintiff seeks to amend the complaint eight months past the
cutoff date, it must show good cause. See Fed. Rule Civ. P. 16(b); Johnson, 975 F.2d at
607–08.
Plaintiff asserts good cause exists because the “purpose for filing an amended
Case 3:24-cv-02026-H-GC Document 33 Filed 03/02/26 PageID.<pageID> Page 5
of 10

6
3:24-cv-02026-H-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
complaint is to conform the complaint to the evidence adduced in discovery,” which did
not end until December 5, 2025. (See Doc. No. 27; see also Doc. No. 15 at 3.) In support
of this, Plaintiff lists a variety of sources including depositions of Defendants’ current and
former employees through November 2025; statements by Defendants’ Chief Executive
Officer, Chief Financial Officer, Chief Accounting Officer, and Chief Business Officer;
and documents produced by Defendants on October 10, 2025, following a Discovery
Conference on September 23, 2025. (Doc. No. 27 at 1, 2, 4.)
Defendants oppose on the grounds that Plaintiff’s proposed amendment is untimely,
prejudicial, and futile. (See Doc. No. 30.) Defendants counter that “if Plaintiff had been
diligent in his review, he would have known Calidi’s financial status well before the
October 10, 2025 production.” (Id. at 8.) Defendants claim that the information Plaintiff
relies upon for his Proposed Second Amended Complaint was produced on April 2, 2025
as part of Defendants’ initial disclosures and produced again on July 11, 2025. (Id. at 7-
8.)
Plaintiff maintains that the factual basis for the amendments was not available
through discovery until Defendants’ October 10, 2025 production of Calidi’s quarterly
financial statements for 2022 and 2023 and “the taking of Stephen Thesing’s deposition on
November 18, 2025”. (Doc. No. 27 at 1, 2, 4.) The Court is inclined to agree as Plaintiff
is entitled to explore its claims through discovery prior to amending its pleadings to assert
them. “Waiting to file the motion until after obtaining corroborating deposition testimony
is 	[] 	sufficient 	to 	meet 	the 	good 	cause 	requirement 	of Federal 	Rule 	of 	Civil
Procedure 16(b).” 	The Bd. of Trustees of Leland Stanford Junior Univ. v. Roche
Molecular Sys., Inc., 2008 WL 624771, at *7 n.7 (N.D. Cal. Mar. 4, 2008); see
also Elec. Scripting Prod., Inc. v. HTC Am. Inc., 2021 WL 2530210, at *3 (N.D. Cal. June
21, 2021). Further, waiting to amend a complaint until a strong evidentiary basis has been
developed is preferable to prematurely asserting those claims based on a limited record that
may or may not support them.
Plaintiff’s delay also appears reasonable in light of ongoing discovery disputes
Case 3:24-cv-02026-H-GC Document 33 Filed 03/02/26 PageID.<pageID> Page 6
of 10

7
3:24-cv-02026-H-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
between the parties. 	On September 23, 2025, the Court held a telephonic Discovery
Conference to resolve issues regarding Defendants' responses to two sets of written
document requests served by Plaintiff on July 27, 2025 and August 4, 2025. 	(Doc. No.
26.) 	Following the Conference, the Court instructed Defendants to produce responsive
documents or, in the alternative, provide full and complete written responses explaining
why any documents were being withheld on or before October 14, 2025. (Id.) Given these
discovery disputes and the parties’ continued depositions through November 2025, the
Court will not deprive Plaintiff of the opportunity to amend its complaint for lack of
diligence. See, e.g., U.S. Equal Emp. Opportunity Comm'n v. Bay Club Fairbanks Ranch,
LLC, 475 F. Supp. 3d 1099, 1102 (S.D. Cal. 2020) (finding good cause to amend the
scheduling order eight months after the deadline for amendments where new information
was uncovered through depositions and admissions in August, November, and December).
The Court also finds good cause to relieve Plaintiff of the original deadline for
amendments because doing so would be consistent with the courts’ strong preference for
resolving cases on the merits. Accordingly, the Court finds good cause to relieve Plaintiff
from the deadline set forth in the original scheduling order deadline and will consider
Plaintiff’s 	motion 	for leave to amend on 	its 	merits. 	See Fru-Con 	Const. 	Corp. 	v.
Sacramento 	Mun. 	Util. 	Dist., 	2006 	WL 	3733815, 	at 	*5 	(E.D. 	Cal. 	Dec. 	15,
2006) (collecting cases) (“Allowing parties to amend [the scheduling order] based on
information obtained through discovery is common and well established.”).
B. 	Leave to Amend Should Be Granted
Because Plaintiff has established good cause to modify the scheduling order to
extend the deadline to request leave to amend the pleadings, the Court now turns to
application of the Rule 15(a) standard in determining whether leave to amend should be
granted here.
“In general, a court should liberally allow a party to amend its pleading.” Sonoma
Cnty. Ass'n of Retired Emps. v. Sonoma Cnty., 708 F.3d 1109, 1117 (9th Cir. 2013).
“Courts may decline to grant leave to amend only if there is strong evidence of ‘undue
Case 3:24-cv-02026-H-GC Document 33 Filed 03/02/26 PageID.<pageID> Page 7
of 10

8
3:24-cv-02026-H-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, [or] futility of amendment, etc.’” Sonoma Cnty.,
708 F.3d at 1117 (quoting Foman, 371 U.S. at 182). “[I]t is the consideration of prejudice
to the opposing party that carries the greatest weight.... Absent prejudice, or a strong
showing of any of the remaining Foman factors, there exists a presumption under Rule
15(a) in favor of granting leave to amend.” Eminence Cap., LLC, 316 F.3d at 1052.
As noted above, Defendants oppose Plaintiff’s motion on the grounds of undue
delay, prejudice, and futility. 	None of these arguments provide a basis for denying
Plaintiff’s motion.
1. 	Undue Delay
As discussed above in the Rule 16 analysis, Plaintiff’s delay is reasonable in light of
the discovery disputes and depositions through November 2025. Plaintiff was diligent in
seeking leave to amend once the factual bases for the proposed amendments were
uncovered. Therefore, consideration of this factor does not weigh against granting leave
to amend.
2. 	Previous Amendments
Plaintiff seeks leave to file a second amended complaint. (Doc. No. 27.) Plaintiff
filed his first amended complaint as a matter of course. 	(Doc. No. 16.) 	Thereafter,
Defendants answered. (Doc. No. 17.) Plaintiff's proposed amendments are different that
his previous amendment, and there is no history of repeated failures to cure pleading
deficiencies in this case. Thus, consideration of this factor does not weigh against granting
leave to amend.
3. 	Undue Prejudice
Defendants argue in their opposition that they will be prejudiced because discovery
has closed, and depositions have been completed. (Doc. No. 30 at 10.) “Prejudice is the
‘touchstone of the inquiry under rule 15(a).’” Eminence, 316 F.3d at 1052. “Prejudice is
generally mitigated where the case is still in the discovery stage, no trial date is pending
Case 3:24-cv-02026-H-GC Document 33 Filed 03/02/26 PageID.<pageID> Page 8
of 10

9
3:24-cv-02026-H-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
and no pretrial conference has occurred.” Calderon v. Tulare Reg'l Med. Ctr., 2018 WL
4473626, at *5 (E.D. Cal. Sept. 17, 2018). The opposing party has the burden of showing
prejudice. DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987).
Defendants have not demonstrated specific instances of hardship that support its
claim of substantial prejudice. Other than vaguely asserting in conclusory fashion that it
will be “prejudiced if it were not given an opportunity to conduct necessary discovery”,
Defendants 	have 	not 	explained 	nor 	shown 	how 	the 	proposed 	amendments 	would
necessitate duplication of its discovery efforts undertaken thus far. 	(See Doc. No. 30.)
Defendants argue that they will need to reopen fact discovery for the purpose of continuing
Plaintiff’s deposition. 	(Id. at 10.) 	This ordinary burden of litigation is not substantially
prejudicial. 	There is no pending trial date, and no final pretrial conference has been
held. (See Doc. No. 15.) Defendants do not assert that any major case deadlines must be
changed due to Plaintiff’s proposed amendment.
Moreover, as a review of the proposed second amended complaint suggests,
Plaintiff’s 	amendments 	involve 	much 	of 	the 	same 	operative 	facts, 	witnesses, 	and
documentary evidence. 	(See Doc. Nos. 1, 16, 27.) 	Thus, the court concludes that
Defendants have failed to meet their burden of showing that they would suffer “substantial
prejudice” or a “substantial negative effect” if further leave to amend were to be granted.
Consideration of this factor does not weigh against granting leave to amend.
4. 	Futility
A proposed amended claim is futile if it would be immediately “subject to
dismissal.” Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir. 1998)). Leave
to amend should only be denied based on futility if the court “determines that the pleading
could not possibly be cured by the allegation of other facts.” Ebner v. Fresh, Inc., 838 F.3d
958, 968 (9th Cir. 2016) (overruled on other grounds) (citing Doe v. United States, 58 F.3d
494, 497 (9th Cir. 1995)). Where a proposed amended claim involves complicated factual
or legal issues, it is generally preferable for the sufficiency of that claim to be addressed
on a fully briefed motion to dismiss rather than under the more circumscribed Rule
Case 3:24-cv-02026-H-GC Document 33 Filed 03/02/26 PageID.<pageID> Page 9
of 10

10
3:24-cv-02026-H-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
15(a) “futility” analysis. See Green Valley Corp. v. Caldo Oil Co., 2011 WL 1465883, at
*6 (N.D. Cal. Apr. 18, 2011) (noting “the general preference against denying a motion
for leave to amend based on futility”). 	Arguments concerning the sufficiency of the
proposed pleadings, even if meritorious, are better left for briefing on a motion to
dismiss. Lillis v. Apria Healthcare, 2012 WL 4760908, at * 1 (S.D. Cal. Oct. 5, 2012).
Here, the Court acknowledges that Defendants raise challenges to Plaintiff’s
interpretation of the SAFE Agreement and his theory of insolvency. At this stage, it is not
clear that Plaintiff’s causes of action are futile such that no set of facts could constitute a
valid cause of action. Because the Court will allow amendment of the Plaintiff’s complaint,
the factual allegations may shift and Defendants’ challenges are better suited for a briefing
on a future motion to dismiss or motion for summary judgment. Accordingly, the
Court grants leave to amend the causes of action.
Conclusion
For the reasons above, the Court grants Plaintiff’s Motion to Amend. Plaintiff must
file his second amended complaint within seven (7) days from the date this order is filed.
Defendants must file their response within thirty (30) days from the filing of the second
amended complaint. In light of the amendment, the Court vacates Defendants’ motion for
summary judgment as moot and continues the Final Pretrial Conference for six months.
Defendants may file a motion for summary judgment as to Plaintiff’s Second Amended
Complaint.
IT IS SO ORDERED.
DATED: March 2, 2026
MARILYN L. HUFF, District Judge
UNITED STATES DISTRICT COURT
Case 3:24-cv-02026-H-GC Document 33 Filed 03/02/26 PageID.<pageID> Page
10 of 10