Judge: Anne Hwang, Case: 21STCV10618, Date: 2024-01-19 Tentative Ruling

Case Number: 21STCV10618    Hearing Date: January 19, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

On March 17, 2021, Plaintiff Angel Dizon (“Plaintiff”) filed a complaint against Defendants Destination Shuttle Services, LLC, 105 Airport Parking, Inc., SP Plus Corporation, South Bay Airport Shuttle, Inc. and Does 1 to 50 for injuries related to a motor vehicle accident.

On March 28, 2022, Defendant SP Plus Corporation (“SP”) filed a cross complaint against Destination Shuttle Services (“DSS”) for comparative indemnity, contribution, and declaratory relief.

On March 23, 2023, SP filed a motion for leave to amend the cross complaint. The motion was continued to June 27, 2023 so SP’s counsel could submit a supplemental declaration. (See Min. Order, 6/13/23.) The motion was unopposed. On June 27, 2023, SP’s counsel did not appear and the Court took the motion off calendar.

On November 14, 2023, SP filed the instant motion seeking leave to amend the cross complaint, on the same basis as the initial motion. DSS opposes.

LEGAL STANDARD

“A party who fails to plead a cause of action subject to the requirements of this article, whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave to amend his pleading, or to file a cross-complaint, to assert such cause at any time during the course of the action. The court, after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to amend the pleading, or to file the cross-complaint, to assert such cause if the party who failed to plead the cause acted in good faith.¿ This subdivision shall be liberally construed to avoid forfeiture of causes of action.”¿ (Code Civ. Proc., § 426.50.) (Emphasis added.)¿ 

¿ 

The Court of Appeals has explained: “The legislative mandate is clear. A policy of liberal construction of section 426.50 to avoid forfeiture of causes of action is imposed on the trial¿court. A motion to file a cross-complaint at any time during the course of the action must be granted unless bad faith of the moving party is demonstrated where forfeiture would otherwise result. Factors such as oversight, inadvertence, neglect, mistake or other cause, are insufficient grounds to deny the motion unless accompanied by bad faith.” (Silver Organizations Ltd. v. Frank¿(1990) 217 Cal.App.3d 94, 98–99.) “‘‘Bad faith,’ is defined as ‘[t]he opposite of ‘good faith,’ generally implying or involving actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake . . ., but by some interested or sinister motive[,] . . . not simply bad judgment or negligence, but rather . . . the conscious doing of a wrong because of dishonest purpose or moral obliquity; . . . it contemplates a state of mind affirmatively operating with furtive design or ill will. (Id. at 100.)¿ 

California Code of Civil Procedure section 473, subdivision (a)(1) provides, in relevant part: “[t]he court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer.¿ The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.”¿ 

“This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.”¿(Kittredge Sports Co. v. Superior Court¿(1989) 213 Cal.App.3d 1045, 1047.)¿Ordinarily, the court will not consider the validity of the proposed amended pleading in ruling on a motion for leave since grounds for a demurrer or motion to strike are premature.¿The court, however, does have discretion to deny leave to amend where a proposed amendment fails to state a valid cause of action as a matter of law and the defect cannot be cured by further amendment. (See¿California Casualty General Ins. Co. v. Superior Court¿(1985) 173 Cal.App.3d 274, 281¿[overruled on other grounds by¿Kransco¿v. American Empire Surplus Lines Ins. Co.¿(2000) 23 Cal.4th 390].)¿ 

DISCUSSION

Counsel for SP declares that the Court issued a tentative ruling on June 26, 2023 that granted its motion. (Jemmott Decl. ¶ 3.) However, counsel did not appear because he was unfamiliar with the local rule that unopposed motions required an appearance at the hearing. (Id. ¶ 4.) SP seeks to add a fourth cause of action, “Tort of Another”, to the cross complaint that will allow SP to recover attorney fees against DSS for having to defend Plaintiff’s action. (Id. ¶ 7.) SP argues that on March 6, 2023, Plaintiff testified in deposition that he was a passenger in a stopped SP vehicle when a DSS vehicle crashed into it. (Id. ¶ 2, 7.)

In opposition DSS argues the Tort of Another cause of action has no merit because it is only applicable in certain limited circumstances. (Opp., 3.) DSS argues Plaintiff’s action merely alleges general negligence due to a motor vehicle accident and is not an exceptional circumstance.

In reply, SP argues DSS has waived the right to oppose after failing to oppose the initial motion. Additionally, it argues the tort of another doctrine applies in this scenario.

As an initial matter, the first motion was taken off calendar. Accordingly, DSS’s failure to oppose that motion has no bearing on this separate motion. SP does not provide any authority for its position that the Court must disregard the opposition now. Accordingly, the Court will consider DSS’s arguments.

Tort of Another Doctrine

Generally, “[i]n the absence of some special agreement, statutory provision, or exceptional circumstances, attorney's fees are to be paid by the party employing the attorney.” (Prentice v. North Am. Title Guaranty Corp., Alameda Division (1963) 59 Cal.2d 618, 620.) However, the tort of another doctrine provides an exception: “[a] person who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover compensation for the reasonably necessary loss of time, attorney's fees, and other expenditures thereby suffered or incurred.” (Id.)

The doctrine, however, is limited. “[T]he Prentice exception was not meant to apply in every case in which one party's wrongdoing causes another to be involved in litigation with a third party. If applied so broadly, the judicial exception would eventually swallow the legislative rule that each party must pay for its own attorney. [Citations.] To avoid this result, Prentice limits its authorization of fee shifting to cases involving ‘exceptional circumstances.’” (Davis v. Air Technical Industries, Inc. (1978) 22 Cal.3d 1, 6.) Applying this reasoning, the court in Davis declined to extend the doctrine to a standard products liability case where a manufacturer and retailer were sued for a defective product. (Id.)

In Watson v. Department of Transportation (1998) 68 Cal.App.4th 885, 894, the plaintiff sued Caltrans and the driver of another car (Watson) for personal injury after an automobile collision. The jury found the plaintiff and Caltrans at fault and Watson not at fault. Watson recovered a judgment on a cross-complaint against Caltrans awarding him the attorney’s fees incurred in the defense. (Id. at 887.) The Court of Appeal reversed. The court concluded that “[t]he extension of the Prentice rule to the commonplace case of an exonerated alleged tortfeasor would go a long way toward abrogation of the American rule that each party to a lawsuit must ordinarily pay his or her own attorney's fees. It would substantially expand the notion of duty under the law of tort to compensation of the litigation expenses incurred by all persons, however connected to any tortious event, whom the injured plaintiff elects to sue who succeed in establishing lack of liability.” (Watson v. Department of Transportation (1998) 68 Cal.App.4th 885, 894.)

Similarly, here, SP argues that it is not at fault and should be awarded its attorney’s fees for having to defend itself. Even assuming the truth of SP’s claims, there is no authority for extending the tort of another doctrine to this motor vehicle negligence action. Accordingly, the proposed amendment would be futile.

CONCLUSION AND ORDER

Cross-Complainant SP Plus Corporation’s motion for leave to file an amended cross-complaint is DENIED.

Cross-Complainant SP Plus Corporation shall provide notice of the Court’s order and shall file a proof of service of such.