Judge Cherol J. Nellon, Case 20STCV18374 2023-04-05 Tentative Ruling

Judge: Cherol J. Nellon, Case: 20STCV18374, Date: 2023-04-05 Tentative Ruling

Case Number: 20STCV18374 Hearing Date: April 5, 2023 Dept: 28

Cross-Complainants LB Dragon Property, LLC and Land Dragon Properties Holdings, Inc’s Motion for Leave to File First Amended Cross-Complaint

Having considered the moving, opposing and reply papers, the Court rules as follows.

BACKGROUND

On May 14, 2020, Plaintiffs Adel Asknder (“Asknder”) and Mervat Gerges (“Gerges”) filed this action against Defendants GST Transport, Inc. (“GST”), FSI Transloading, Inc. (“FSI”), LB Dragon Property, LLC (“LB”), Land Dragon Properties Holdings, Inc. (“LDPH”), and Craig Shipyard property Company, LLC (“CSPC”) for premises liability, negligence and loss of consortium.

On November 25, 2020, GST filed an answer and a Cross-Complaint against Cross-Defendant FSI for equitable indemnity, partial indemnity, contribution and declaratory relief. On January 6, 2021, FSI filed an answer.

On December 4, 2020, LB and LDPH filed a Cross-Complaint against Cross-Defendant FSI for equitable indemnity, express indemnity, declaratory relief and indemnity. On January 6, 2021, FSI filed an answer.

On December 16, 2020, FSI filed an answer and a Cross-Complaint against Cross-Defendants ROES 1-50 for indemnity, apportionment of fault and declaratory relief. FSI later amended the CC to include Cross-Defendant Unified Protective Services, Inc. (“UPS”). On June 9, 2021, UPS filed an answer.

On May 10, 2021, the Court dismiss CSPC, without prejudice, pursuant to Plaintiffs’ request. On March 14, 2022, the Court dismiss Gerges’ causes of action, with prejudice, pursuant to Plaintiffs’ request. On January 19, 2023, LB and LDPH filed an answer.

On February 1, 2023, LB and LDPH (“Moving Defendants”) filed a Motion for Leave to File the First Amended Cross Complaint to be heard on April 5, 2023. On March 22, 2023, FSI field an opposition. On March 29, 2023, Moving Defendants filed a reply.

Trial is currently set for June 22, 2023

PARTY’S REQUESTS

Moving Defendants requests the Court grant leave to file the First Amended Cross-Complaint.

FSI requests the Court deny the motion.

LEGAL STANDARD

Under CCP § 426.50, “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.”

CCP § 473 states: “(a)(1) 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.

(2) When it appears to the satisfaction of the court that the amendment renders it necessary, the court may postpone the trial, and may, when the postponement will by the amendment be rendered necessary, require, as a condition to the amendment, the payment to the adverse party of any costs as may be just.”

CCP § 428.10 states “A party against whom a cause of action has been asserted in a complaint or cross-complaint may file a cross-complaint setting forth either or both of the following: (a) Any cause of action he has against any of the parties who filed the complaint or cross-complaint against him. Nothing in this subdivision authorizes the filing of a cross-complaint against the plaintiff in an action commenced under Title 7 (commencing with Section 1230.010) of Part 3. (b) Any cause of action he has against a person alleged to be liable thereon, whether or not such person is already a party to the action, if the cause of action asserted in his cross-complaint (1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause brought against him.”

DISCUSSION

Moving Defendants’ original CC was for equitable and express indemnity, based on the subject lease agreement in Moving Defendants’ possession at the time. In December 2022, Moving Defendants’ counsel obtained a copy of the lease agreement that was in effect on the date of the incident, which has different text than the one referenced in the original CC. Moving Defendants only recently discovered this discrepancy. There is good cause to allow Moving Defendants to correct the text of the CC to more accurately match the agreement used as a foundation for the express indemnity claim.

Moving Defendants also request leave to add a cause of action for breach of contract, as FSI has failed to provide the insurance required by the November 2016 contract. This new cause of action stems from the same basic premise of the initial Cross-Complaint. Moving Defendants should not lose out on a potentially viable cause of action due to attorney’s mistake or oversight. Leave to amend is liberally granted unless there is undue prejudice to the other side; the Court does not find undue prejudice here. There should be no undue prejudice as it is based on the same contractual arrangement available to both Moving Defendants and FSI, and the underlying CC. Should FSI need additional time to conduct discovery, FSI may bring a motion to continue trial.

FSI requests the Court deny the motion as Moving Defendants failed to precisely identify, by page and line numbers, additions or deletions made to the prior pleading. Although not compliance with CRC 3.1324(a), this does not overcome the merits of the motion. The Court grants the motion and admonishes Moving Defendants’ counsel to comply with the CRC in future motion work.

CONCLUSION

Cross-Complainants LB Dragon Property, LLC and Land Dragon Properties Holdings, Inc’s Motion for Leave to File First Amended Cross-Complaint is GRANTED. Moving Defendants are ordered to file and serve the First Amended Cross-Complaint within 10 days of the hearing on the motion.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.