Judge: Curtis A. Kin, Case: 21STCV23196, Date: 2023-01-17 Tentative Ruling

Case Number: 21STCV23196    Hearing Date: January 17, 2023    Dept: 72

MOTION FOR LEAVE TO FILE

FIRST AMENDED CROSS-COMPLAINT

Date:            1/17/22 (8:30 AM)                                                        

Case:            Enriched Design, Inc. v. Federated Mut. Ins. Co., et al.  (21STCV23196)

TENTATIVE RULING:

Cross-Complainant H.S.D. Investors, LLC’s Motion for Leave to File a First Amended Complaint is GRANTED.  

Cross-complainant H.S.D. Investors LLC (“HSD”) seeks leave to file a First Amended Cross-Complaint (“FAXC”) to add the fifth through ninth causes of action for comparative indemnity and apportionment of fault, total equitable indemnity, contribution, contractual indemnity, and breach of contract, respectively. (Ross Decl. ¶ 9 & Ex. B.) According to the proposed FAXC, the fifth through seventh causes of action are asserted against all cross-defendants, i.e., Enriched Design, Inc. (“Enriched Design”) and Arthur Bislamyan. The eighth and ninth causes of action are asserted against Bislamyan, not Enriched Design.

Cross-defendant Enriched Design filed an opposition. The opposition was joined by cross-defendant Bislamyan.

Enriched Design argues that, with respect to the proposed eighth cause of action for contractual indemnity and ninth cause of action for breach of contract, the motion is inconsistent with respect to the cross-defendants against whom these causes of action are asserted in the proposed amended cross-complaint. The supporting memorandum and declaration state that HSD is seeking to assert these causes of action against Enriched Design in addition to Bislamyan. (Mtn. at 9:21-23; Ross Decl. ¶ 8.) However, in the proposed FAXC, the eighth and ninth causes of action are asserted against Bislamyan only, not Enriched Design. (Ross Decl. ¶ 9 & Ex. B at 12:20:22, 13:19-22.)

In the reply, HSD clarifies that it does not seek to assert any of the proposed new causes of action against Enriched Design. (Ross Reply Decl. ¶ 2 [“H.S.D. does not seek to allege the Fifth through Ninth causes of action again Enriched Design”].) Accordingly, Enriched Designs’ assertion that the motion is deficient as to it is unavailing.

Enriched Design also argues, without citing to authority, that HSD’s claims of equitable indemnity and contribution are subject to demurrer because a defendant purportedly cannot assert these claims as a substitute for affirmative defenses. To the extent that Bislamyan makes this same argument as part of its joinder, “the preferable practice [is] 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.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.)

Enriched Design and Bislamyan argue that the declaration in support of the motion does not state why the amendment is necessary and proper, when the facts giving rise to the amended pleading were discovered, and the reasons why the amendment was not made earlier, as required by Rule of Court 3.1324(b).

With respect to Enriched Design, as stated above, HSD is not seeking to assert the proposed new causes of action against Enriched Design.

As for Bislamyan, with respect to why the proposed causes of action are necessary and proper, counsel for HSD explains that its lease agreement with Bislamyan provided for indemnification for HSD. (Ross Decl. ¶¶ 11, 12 & Ex. D at ¶ 8.7.) Counsel for HSD also explains that the lease agreement required Bislamyan to name HSD as an additional insured under Bislamyan’s insurance policy. (Ross Decl. ¶¶ 12, 13 & Ex. D at ¶ 8.2.)

With respect to when the facts giving rise to the amended pleading were discovered and why the amendment was not made earlier, HSD served a tender letter on Bislamyan on October 3, 2022, but Bislamyan has not responded or accepted HSD’s tender. (Ross Decl. ¶ 14 & Ex. E.) HSD filed this motion on December 19, 2022, after Bislamyan failed to accept HSD’s tender.

Enriched Design and Bislamyan also maintain that HSD inexcusably delayed in filing this motion. Absent a showing of prejudice, delay in seeking an amendment alone does not justify denial of leave to amend. (Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-65.) Here, trial is set for November 6, 2023. Adequate time remains for Bislamyan to file any motions attacking the pleadings, conduct discovery, and file any motion for summary judgment. Cross-defendants do not demonstrate any prejudice warranting denial of the motion.

The motion is GRANTED. Within five (5) court days hereof, cross-complainant H.S.D. Investors, LLC shall file the First Amended Cross-Complaint as proposed in the motion, except that Enriched Design, Inc. shall be excluded from the fifth through ninth causes of action.