Department 58

Hearing Date: March 20, 2023

Case Name: Dean Zander v. Ocean Towers Housing Corporation, et al.

Case No.: 21STCV23636

Matter: Motion for Leave to Amend Complaint

Moving Party: Plaintiff Dean Zander

Responding Party: Defendant Ocean Towers Housing Corporation

Tentative Ruling: The Motion for Leave to Amend Complaint is granted.

Background

On June 25, 2021, Plaintiff Dean Zander filed this action against Defendants Ocean Towers Housing Corporation, Donald J. Van Deventer, individually, and as Trustee of the 2004 Van Deventer Family Trust, QTIP Trust dated March 31, 2004, and as amended on January 14, 2013 for (1) tortious breach of implied warranty of habitability, (2) negligence, (3) premises liability, (4) private nuisance, and (5) constructive eviction. On October 21, 2022, Plaintiff substituted Defendant Action Property Management, Inc. as Doe 1.

Plaintiff alleges that while living at Defendants’ rental property, he was exposed to high levels of Legionella bacteria and contracted Legionnaires' disease.

Trial is set for February 5, 2024.

Plaintiff now moves to amend the Complaint to add a claim for punitive damages against Defendants Ocean Towers Housing Corporation and Action Property Management. Defendant Ocean Towers Housing Corporation opposes.

Discussion

CCP §473(a)(1) states: “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.”

Judicial policy favors resolution of all disputed matters between the parties and, therefore, the courts have held that “there is a strong policy in favor of liberal allowance of amendments.” (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 296-97; see also Ventura v. ABM Industries, Inc. (2013) 212 Cal.App.4th 258, 268) [“Trial courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial where the adverse party will not be prejudiced.”].)

Pursuant to California Rules of Court rule 3.1324(a), a motion to amend must: (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered; and (2) state what allegations are proposed to be deleted from or added to the previous pleading and where such allegations are located. Rule 3.1324(b) requires a separate declaration that accompanies the motion, stating: (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 reason why the request for amendment was not made earlier.

Plaintiff has complied with the procedural requirements of California Rules of Court rule 3.1324(a). Plaintiff has also submitted the declaration of counsel in compliance with rule 3.1324(b). Counsel represents that Plaintiff's proposed First Amended Complaint in part names Action Property Management, Inc. (Doe 1) as a defendant and clarifies the scope and extent of plaintiff's claims against this defendant. (Ersoff Decl., ¶5.) Further, as to Ocean Towers Housing Corporation, Plaintiff was only able to depose its Person Most Qualified, John Ramirez, on January 10, 2023 after ongoing efforts to take it. (Id. at ¶8.) Counsel represents that this deposition made clear that 1) defendants, including their officers, directors or managing agents, were at all times aware at all times of their obligations to maintain the Property, including the Water Systems in a reasonably safe manner so as to not subject residents to unreasonable risks of harm; 2) defendants, including their officers, directors or managing agents, were at all times aware at all times that the failure to implement or monitor a Legionella water management program and/or the failure to properly maintain, inspect, repair or monitor the Water Systems could cause Legionella to grow and cause serious harm to their residents; and 3) Nonetheless Defendants' management level employees know and/or ratified decisions not to maintain, inspect, repair, monitor, install or design the Water Systems at the Property in accordance with industry standards and/or policies and/or government standards. (Id. at ¶12.)

Defendants oppose the motion based on the merits of the punitive damages claim. The Court declines to consider the validity of the proposed amended pleading in ruling on this motion for leave because grounds for a demurrer or motion to strike are premature.¿

Accordingly, the motion for leave to amend is granted. Plaintiff shall serve and file its amended complaint no later than ten days from the date of this ruling.