Judge: Curtis A. Kin, Case: 21STCV35298, Date: 2023-01-26 Tentative Ruling

Case Number: 21STCV35298    Hearing Date: January 26, 2023    Dept: 72

MOTION FOR LEAVE TO

FILE AMENDED COMPLAINTS

Date:                           1/26/23 (8:30 AM)                                           

Case:               Zurich American Ins. Co. v. Mitsubishi Electric US, Inc. (21STCV35298)

TENTATIVE RULING:

Plaintiffs Zurich American Insurance Company and ACE Property & Casualty Insurance Company’s Motion for Leave to File Amended Complaints is GRANTED.

Plaintiffs Zurich American Insurance Company and ACE Property & Casualty Insurance Company seek leave to file amended complaints. (Rogers Decl. ¶¶ 4, 6 & Exs. 1, 3.) The purpose of the amendments is to change the name of the subrogor in the operative complaints from RIM Hospitality, Inc. to RIM Corporation dba Rim Hospitality. Plaintiffs also seek to name 120 South Los Angeles Street Hotel Investors, LLC and 120 South Los Angeles Street Hotel Operator LLC as the hotel owners and additional subrogors.

Defendant Mitsubishi Electric US, Inc. contends the proposed amendments are a sham. The sham pleading doctrine has no applicability here. “‘[U]nder the sham pleading doctrine, plaintiffs are precluded from amending complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrers or motions for summary judgment. [Citations omitted].’” (State ex rel. Metz v. CCC Info. Servs., Inc.) (2007) 149 Cal. App. 4th 402, 412.) No demurrer or motion for summary judgment has been heard in this action. Accordingly, it cannot be said that the proposed amendments are in avoidance of an attack on the pleadings.

Defendant argues that the proposed amendments are futile because plaintiffs did not defend or indemnify RIM Corporation, 120 South Los Angeles Street Hotel Investors, LLC, or 120 South Los Angeles Street Hotel Operator LLC. The merit of this argument is not to be adjudicated on a motion seeking leave to amend the operative pleadings. “[T]he 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.)

Defendant maintain the proposed amendments will prejudice it. To the extent that the amendments will necessitate changes to any dispositive motions or additional discovery, such concerns are adequately addressed with the Court’s recent order continuing of the trial to November 27, 2023, as stipulated by the parties.

The motion is GRANTED. Within two (2) court days hereof, plaintiffs Zurich American Insurance Company and ACE Property & Casualty Insurance Company are ordered to file their respective amended complaints.