Judge: Cherol J. Nellon, Case: 21STCV41999, Date: 2023-03-21 Tentative Ruling
Case Number: 21STCV41999 Hearing Date: March 21, 2023 Dept: 28
Cross-Complainant Mak Management,
LLC’s Motion for Leave to File Second Amended Cross-Complaint
Having considered the moving and
opposing papers, the Court rules as follows.
BACKGROUND
On
November 10, 2021, Plaintiff Rudy Pina (“Plaintiff”) filed this action against
Defendants Mak Management, LLC (“Mak” or “Defendant”) and LAR Construction
& Remodeling (“LAR”) for negligence and premises liability.
On
January 5, 2022, Mak filed an answer and a Cross-Complaint against
Cross-Defendant LAR for indemnity and contribution. On January 21, 2022, Mak
filed the FACC. On November 2, 2022, LAR filed an answer.
On
February 25, 2022, the Court dismissed LAR, without prejudice, pursuant to
Plaintiff’s request.
On
January 27, 2023, Mak filed a Motion for Leave to File the Second Amended Cross
Complaint to be heard on March 21, 2023. On March 8, LAR filed an opposition.
Trial
is currently set for May 10, 2023
PARTY’S REQUESTS
Mak
requests the Court grant leave to file the Second Amended Cross-Complaint.
LAR
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
Mak’s
original Cross-Complaint and FAC are identical, both asserting causes of action
for equitable indemnity and contribution against LAR. Mak’s counsel recently
learned there was an express indemnification clause within the lease agreement
between Mak and LAR; Mak seeks leave to amend to correct the Cross-Complaint
causes of action to implied equitable indemnity and express indemnity. Mak did
not provide a reason as to why this express clause was only recently
discovered, merely stating it was not included earlier as a cause of action due
to attorney mistake.
Mak’s
counsel wrongly relies on CCP §473(b) to obtain the requested relief; CCP §473(b)
is specifically a request for relief from a judgment, dismissal, order or other
proceeding that occurred due to mistake, inadvertence, surprise or neglect. It
cannot be applied for an application for relief for improper pleadings. CCP §473(a)
provides a basis to allow a party to amend any pleading, which instead is based
on a “furtherance of justice,” and the Court’s discretion.
Although
Mak did not plead express indemnity earlier, Mak did plead indemnity
earlier; Mak would be unduly prejudiced should it be unable to assert a
rightful cause of action for indemnity due to an attorney’s neglect in
reviewing the subject agreement earlier in the litigation. Leave to amend is
liberally granted unless there is undue prejudice to the other side; the Court
does not find undue prejudice here. LAR was effectively on notice as to Mak’s
claims, as Mak asserted a general cause of action for indemnity. LAR also had
access to the subject lease agreement, putting them on notice as to potential
express indemnity claims. The Court grants the motion.
CONCLUSION
Cross-Complainant Mak Management, LLC’s Motion
for Leave to File Second Amended Cross-Complaint is GRANTED. MAK is ordered to file and serve the
Second Amended Cross-Complaint within 30 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.