Judge: Anne Hwang, Case: 23STCV10500, Date: 2024-07-09 Tentative Ruling

Case Number: 23STCV10500    Hearing Date: July 9, 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

This case stems from an alleged construction site injury. On May 10, 2023, Plaintiff Arcel D. Escalante filed a complaint against Defendants Burrell Construction, Inc., Foundational Builders Corporation, BA Crete Corp., Lanai Properties, and Does 1 to 20.

On November 8, 2023 Cross-Complainant Burrell Builders, Inc. (“Burrell”) filed a cross-complaint against Foundational Builders Corporation and Moes 1 to 20 for equitable indemnity and apportionment, and declaratory relief. On December 12, 2023, Foundational Builders Corporation (“Foundational Builders”) filed an answer to the cross-complaint.

Burrell now moves for leave to amend its cross complaint to include causes of action for breach of contract and express indemnity. No opposition has been filed.

LEGAL STANDARD

Under Code of Civil Procedure section 576, “[a]ny judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.” 

“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].)¿ 

California Rules of Court, rule 3.1324:  Procedural Requirements

            Pursuant to California Rules of Court, rule 3.1324(a), a motion to amend a pleading before trial must:

“(1) Include a copy of the proposed amendment or amended pleadings, which must be serially numbered to differentiate it from previous pleadings or amendments;

(2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and

(3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.”

            In addition, under Rule 3.1324(b), a motion to amend a pleading before trial must be accompanied by a separate declaration that specifies the following:

“(1) the effect of the amendment;

(2) why the amendment is necessary and proper;

(3) when the facts giving rise to the amended allegations were discovered; and

(4) the reasons why the request for amendment was not made earlier.”

DISCUSSION

As an initial matter, the procedural requirements have not been met since the declaration in support of this motion does not state when the subcontract was discovered or why the amendment was not made earlier. The motion also does not identify by page, paragraph, or line number, where the proposed additions are found. Nevertheless, Burrell has provided a copy of the proposed amended cross-complaint. (Stroup Decl. ¶ 3, Exh. A.)

Burrell was the general contractor for the construction site, and it subcontracted with Foundational Builders, which employed Plaintiff. Burrell argues that the proposed causes of action are based on an agreement between it and Foundational Builders, related to the subcontract. No opposition has been filed for this motion. Therefore, because there is no opposition, and applying the liberal policy in favor of amendments, the motion for leave is granted.

CONCLUSION AND ORDER

Cross-Complainant Burrell Builders, Inc.’s motion for leave to file an amended cross-complaint is GRANTED. Burrell shall file and serve its first amended cross-complaint within 10 days.

Burrell shall provide notice of the Court’s order and shall file a proof of service of such.