Judge: Bruce G. Iwasaki, Case: 21STCV39634, Date: 2023-04-05 Tentative Ruling

Case Number: 21STCV39634    Hearing Date: April 5, 2023    Dept: 58

Judge Bruce G. Iwasaki

Department 58

Hearing Date:             April 5, 2023

Case Name:                Bianca Petrinec v. Orkin Services of California, Inc. dba Orkin Pest Control, Alliance Environmental, Inc., and Does 1-25, inclusive.

Case No.:                    21STCV39634

Matter:                        Motion for Leave to File First Amended Complaint

Moving Parties:          Plaintiff Bianca Petrinec

Responding Party:      Defendants Orkin Services of California, Inc. dba Orkin Pest Control and Orkin, LLC

Background

            On October 27, 2021, Plaintiff Bianca Petrinec (Plaintiff) filed a complaint against Defendants Orkin Services of California, Inc. dba Orkin Pest Control (“Orkin”), Alliance Environmental Group, Inc. (“Alliance”) (erroneously sued as “Alliance Environmental, Inc.”), and Does 1-25, inclusive (hereinafter “Defendants”) for 1) breach of contract (against Orkin and Does 1-10 only) and 2) negligence (against Orkin, Alliance, and Does 1-25).

            Plaintiff is the owner of residential real property in Long Beach that is the subject property of this action. Plaintiff alleges that on August 17, 2021 she contracted with Orkin for pest control and thermal treatment of the subject property for a fee of $2,600.00. On August 23, 2021, Orkin’s subcontractor, Alliance, provided heat treatment for bed bugs/mites. Before performing the treatment, Alliance and Orkin allegedly assured Plaintiff that heat treatment was appropriate and would not damage the property or its contents. However, according to the Complaint, Alliance applied “excessive, uncontrolled, and unreasonable heat to the subject property, well above the temperature range for residential heat treatment applications.” The resulting damage included damage to “the property, walls and structure, and interior components, contents, furniture, personal possessions, jewelry, art, electronics and other items.” Plaintiff alleges Orkin breached its duty of care by applying excessive heat and failing to properly monitor the application or provide thermal protection for the contents. Plaintiff seeks $1 million in damages as a direct result of the breach of contract. Plaintiff alleges that Orkin and Alliance were negligent because they failed to maintain the heat applied to the house in a specified range, to control and monitor the application of the heat, and to treat the property and contents safely.

            A jury trial is currently set for May 20, 2024.

            Plaintiff now moves to amend the Complaint.  She seeks to add a new claim for fraud against Orkin only. Defendants oppose the motion.

Legal Standard

            The court may, in furtherance of justice, allow a party to amend any pleading upon any terms as may be proper.  (Code Civ. Proc., §§ 473, subd. (a); 576.)  Courts liberally grant leave to amend in light of a strong policy favoring resolution of all disputes between parties in the same action.  (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.)  Accordingly, requests for leave to amend generally will be granted unless the party seeking to amend has been dilatory in bringing the proposed amendment, and the delay in seeking leave to amend will cause prejudice to the opposing party if leave to amend is permitted.  (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490; see also Armenta ex rel. City of Burbank (2006) 142 Cal.App.4th 636, 642 [“instances justifying the court’s denial of leave to amend are rare.”].)  Absent prejudice, delay alone is insufficient to deny leave to amend.  (Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565.) The decision on a motion for leave is directed to the sound discretion of the trial court.  (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2014) ¶¶ 6:637 et seq.)

A party requesting leave to amend must state what allegations in the previous pleading are proposed to be deleted and added, as well as specify where, by page, paragraph, and line number, the changes are located.  (Cal. Rules of Court, rule 3.1324(a)(1)-(3).) The moving party must also attach the proposed amended pleading with a declaration by counsel, describing (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) why the request was not made earlier.  (Cal. Rules of Court, rule 3.1324(b)(1)-(4).) 

Discussion

            Plaintiff has properly complied with the Rules of Court.  Plaintiff has attached a declaration by her counsel, Timothy Norton, which is attached to the motion, along with a proposed first amended complaint. Plaintiff states that she is adding a cause of action for fraud against Defendant Orkin at ¶¶ 17-21 and in the prayer for relief on pg. 8. (Norton Decl., ¶ 4.)  In the Declaration of Timothy Norton, Norton explains that the “effect of the amendment is to add a cause of action for fraud and the related damages arising from fraud.” (Norton Decl., ¶ 5.) Norton also states that “the amendment is necessary to state and assert the claim for fraud and the amendment is the proper way to state and assert those claims.” (Norton Decl., ¶ 6.) Norton further alleges that he discovered the facts giving rise to the claims during his review of "the entire discovery file, all documents and responses as well as the latest and more recent discovery responses as part of a recent assessment of the case as a whole.” (Norton Decl., ¶ 7.) Finally, Norton alleges that the request was not made earlier because the complete information was just recently obtained and reviewed. (Norton Decl., ¶ 7.)

            On its merits, the Court finds that Plaintiff’s request is justified because Defendants fail to show that undue prejudice would result were the Court to grant the motion.

            Where the alleged delay in seeking the amendment has not misled or prejudiced the defendants, the liberal policy of allowing amendments prevails and it is an abuse of discretion to deny leave in such a case, even if sought as late as the time of trial. (Higgins v. Del Faro (1981) 123 3d. 558, 564-565.) Prejudice exists where the amendment would result in a delay of trial, along with loss of critical evidence, added costs of preparation, and increased burden of discovery. (Magpali v. Farmers Group (1996) 48 Cal.App.4th 471, 487.)

Defendants allege that Plaintiff could have brought the claim for fraud when she filed the original complaint, on October 27, 2021. Even assuming that this contention is true, Defendants do not allege that they have been misled or that they will be prejudiced in any significant way by the amendment. Moreover, trial is still more than one year away, giving Defendants ample time to prepare a defense. The Court does not find Defendants’ argument based on undue delay persuasive.

            Defendants also argue that Plaintiff’s proposed first amended complaint fails to establish a claim for fraud and a prayer for punitive damages because the allegations do not amount to a requisite showing of oppressive, malicious, fraudulent, or willful or wanton conduct. Ordinarily, grounds for demurrer or a motion to strike are premature and courts will not consider the validity of the proposed amended pleading in deciding whether to grant leave to amend because the opposing party will have the opportunity to attack the validity of the amended pleading after leave to amend is granted. (Kittredge Sports Co. v. Sup.Ct. (1989) 213 Cal.3d 1045, 1048.) There are certain exceptions to this general rule, such as where the proposed amendment would have been futile because it was barred by the statute of limitations. (Foxborough v. Van Atta, (1994) 26 Cal.App.4th 217.) However, none of those exceptions apply here. It is not appropriate now to rule on the sufficiency of the proposed amended complaint.

            Accordingly, for the reasons above, and considering the policy of great liberality favoring granting such motions, Plaintiff’s request for leave to file a first amended complaint is granted.