Judge: Anne Richardson, Case: 22STCV30335, Date: 2023-05-11 Tentative Ruling

Case Number: 22STCV30335    Hearing Date: May 11, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Plaintiff Tofba International (Tofba) sues Defendant Kyl Construction, Inc. (Kyl) and Does 1-300 pursuant to a September 16, 2022 Complaint alleging claims of (1) Breach of Contract, (2) General Negligence, (3) Negligence, and (4) Strict Products Liability. The claims arise from allegations that Tofba paid money to Kyl for Kyl to pick up $164,315.65 of goods belonging to Tofba at Tofba’s Compton, California location on March 2, 2022 and transport and deliver all of Tofba’s freight in good order to Amazon in Greenwood, Indiana by March 8, 2022, only for Kyl to fail to deliver Tofba’s goods as a result of a fire that broke out in Kyl’s trailer between March 2, 2022 and March 8, 2022, destroying Tofba’s goods either through fire or smoke by making them useless and nonsalable.

On March 30, 2023, Tofba filed a motion for court leave to file a First Amended Complaint (FAC). The amendment would add a fifth cause of action to the pleadings on the theory that discovery has revealed that there is no direct contract between Tofba and Kyl for the transportation of goods, but rather, that Tofba is the third-party beneficiary of a contract between Kyl and IMC Pro International, Inc. (IMC), where Kyl was the actual trucker, IMC was the party with whom Tofba contracted for freight services, and Milestone Trailer Leasing, LLC leased to Kyl or IMC the trailer that caught fire. The motion also explains that Tofba intends to serve the FAC on IMC and Milestone Trailer Leasing as Doe defendants.

On April 27, 2023, Kyl opposed the motion.

On May 3, 2023, Tofba replied to the opposition.

The motion for leave is now before the Court.

Motion for Leave to File FAC

Legal Standard

California Code of Civil Procedure section 473, subdivision (a)(1) provides, in relevant part: “The 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.”

Under California Rules of Court Rule, rule 3.1324, subdivision (a), a motion to amend a pleading shall:

(1) include a copy of the proposed amendment or amended pleading, 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.

Under California Rules of Court, rule 3.1324, subdivision (b), a separate declaration must accompany the motion and must specify:

(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.

“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; however, the Court 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, 403-06; see also Kittredge Sports Co. v. Superior Court, supra, 213 Cal.App.3d at p. 1048 [“[E]ven if the proposed legal theory is a novel one, ‘the preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings’” (quoting California Casualty General Ins. Co. v. Superior Court, supra, at p. 280)].)

However, leave to amend may also be properly denied when “the insufficiency of the proposed amendment is established by controlling precedent and . . . [can]not be cured by further appropriate amendment.” (California Casualty General Ins. Co. v. Superior Court, supra, 173 Cal.App.3d at pp. 280-81; see, e.g., Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 231 [not an abuse of discretion to deny leave to amend when “proposed amendment would have been futile because it was barred by the statute of limitations” with no indication of relating back to the original complaint].)

Further, if a good amendment is proposed in proper form, a long, unwarranted and unexcused delay in presenting it may be a good reason for denial. (Roemer v. Retail Credit Co. (1975) 44 Cal.App.3d 926, 939-40.) In most cases, the factors for timeliness are: (1) lack of diligence in discovering the facts or in offering the amendment after knowledge of them; and (2) the effect of the delay on the adverse party. (Id. at p. 940.) If the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the judge has discretion to deny leave to amend. (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.) Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, or added costs of preparation such as an increased burden of discovery. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-88.)

Analysis

I. Cal. Rules of Court, 3.1324, subds. (a)-(b)

Plaintiff Tofba’s motion satisfies California Rules of Court, rule 3.1324, subdivision (a)(1) by attaching a copy of the proposed FAC to the motion. (See Mot., Ex. 1.)

Plaintiff Tofba’s motion satisfies California Rules of Court, rule 3.1324, subdivisions (a)(2)-(3) by providing a declaration from counsel explaining that the proposed FAC simply adds a fifth cause of action to the pleadings, which alleges a third-party beneficiary claim. (See Mot., Sine Decl., ¶¶ 6-7.)

Plaintiff Tofba’s motion satisfies California Rules of Court, rule 3.1324, subdivisions (b)(1)-(4). The motion attaches a declaration from counsel explaining the effect of the amendment: “adding of a third[-]party beneficiary theory upon which relief is sought.” (Mot., Sine Decl., ¶ 7.) The declaration explains why the amendment is necessary and proper: “[I]t enables [P]laintiff recover its damages, since there technically would not be any recovery by plaintiff under a straight breach of contract theory.” (Mot., Sine Decl., ¶ 8.) And the declaration explains when the facts giving rise to amendment were discovered, as well as why amendment was not sought sooner: The “absence of a contract between Tofba, Kyl, Milestone, and IMC Pro was first discovered in Kyl’s discovery responses dated March 20, 2023,” with this motion filed on March 30, 2023. (Mot., Sine Decl., ¶ 9.)

II. Other Arguments

Defendant Kyl argues that this motion is deficient for three reasons. First, Kyl argues that the motion fails to state proper grounds for relief insofar as the motion is comprised of a string of legal theories without any application to the facts in this case. (Opp’n, p. 3.) Second, Kyl argues that the motion fails to state a cause of action for breach of contract—the already-stated first cause of action in the Complaint—because Plaintiff’s counsel’s declaration clearly recognizes that there is no contract between Tofba and Kyl for freight services. Kyl also argues that the breach of contract claim is confusingly stated because the proposed FAC fails to directly name IMC and Milestone Trailer Leasing as direct defendants or assign specific allegations to them, making it unclear as to whom the breach of contract claim and its allegations are directed. (Opp’n, pp. 3-4.) Third, Kyl argues that it will be unfairly prejudiced if the motion is granted given the contradictions in the proposed FAC and Tofba admitting that it never had a contract with Kyl for freight services. (Opp’n, pp. 4-5.)

In reply, Tofba responds to these arguments. (See Reply, pp. 1-4.)

The Court finds that insufficient grounds exist to deny this motion. The Court will require an updated proposed FAC from Plaintiff Tofba.

First, the motion and supporting declaration from counsel sufficiently provide grounds for this Court to understand the nature of the amendment proposed by Tofba. Second, to the extent that the first cause of action is not sufficiently stated against Kyl, the preferable practice would be to permit the amendment and have Kyl test the legal sufficiency of the FAC’s claims by demurrer, motion for judgment on the pleadings, or other appropriate proceedings. (Kittredge Sports Co. v. Superior Court, supra, 213 Cal.App.3d at p. 1048.) Third, the Court is unconvinced by Kyl’s prejudice arguments because the FAC still assigns liability to Kyl as the actual trucking company that drove the trailer in which Tofba’s good were housed and damaged.

Tofba’s motion is therefore GRANTED.

Moreover, the Court finds that Kyl is incorrect to argue that IMC and Milestone Trailer Leasing should be added as direct defendants and not Does to the proposed FAC. Kyl argues that Tofba’s ability to add defendants to the action as Does is limited to circumstances where “the plaintiff is ignorant of the name of a defendant.” (Code Civ. Proc., § 474.) The Court rejects the implication of this argument. Here, Tofba may be aware of the names at this point, after discovery, but there is no showing that it was aware of the names of the defendants at the time it filed its initial complaint. (See Mot., Sine Decl., ¶¶ 4-5.) As such, use of Doe defendant procedures is appropriate. 

Conclusion

Plaintiff Tofba International’s Motion for Leave of Court to File First Amended Complaint is GRANTED, Subject to Order, because the motion complies with California Rules of Court, rule 3.1324, subdivisions (a) and (b) and because the grounds advanced in opposition by Defendant Kyl Construction, Inc. fail to convince the Court that relief is not merited here.

The Court orders Tofba to file the proposed FAC attached as Exhibit 1 to the motion WITHIN SEVEN CALENDAR DAYS.