Judge: David A. Rosen, Case: 21GDCV01033, Date: 2022-12-16 Tentative Ruling
Case Number: 21GDCV01033 Hearing Date: December 16, 2022 Dept: E
Hearing Date: 12/16/2022 – 8:30am
Case No. 21GDCV01033
Trial Date: 04/03/2023
Case Name: 846 E. VALLEY BLVD LLC v. 860 E&A LLC, et al.
TENTATIVE
RULING ON MOTION FOR LEAVE TO AMEND
Moving Party: Plaintiff, 846 E.
Valley Blvd. LLC (“Plaintiff”)
Responding Party: Defendants 860 E&A LLC and
POVAC Investments dba Adept Building and Construction filed a Notice of
Conditional Non-Opposition. These Defendants do not oppose the motion, but they
stated the amendment of the complaint will require a continuance of the April
3, 2023, trial date in order for all parties, including Defendants, to conduct
discovery and depositions, and develop expert testimony with respect to the
newly named parties. Defendants therefore request that the Court set a
scheduling conference to take place after the appearance of the newly named
parties to address the trial and other related dates.
Proof of Service Timely Filed (CRC
Rule 3.1300(c)): ok
16/21 Court Days Lapsed (CCP 1005(b)): ok
Proper Address: Defendant 860 E&A LLC, it appears, is represented
by both Theresa C. Becerra and Matthew Yarling. It appears on eCourt that both
Becerra and Yarling were properly served via email.
As
to Defendant POVAC Investments, their representation is unclear. On eCourt, two
different attorneys are listed for POVAC: Milene Chraghchian Apanian and Matthew
Yarling. If POVAC’s counsel is Yarling, then POVAC appears to have been
properly served via email. However, if Apanian is POVAC’s counsel, I do not see
that Apanian was served this motion.
There
also appears to be a Defendant named Constructure Inc.; it appears their
counsel was properly served via email.
Moving Papers: Motion; Proposed
Order
Opposition Papers: Defendants’, 860
E&A LLC and POVAC Investments, Inc. dba Adept Building and Construction,
Notice of Conditional Non-Opposition; Proof of Service
RELIEF REQUESTED
Plaintiff moves for an order granting leave to file a First Amended Complaint
(“FAC”).
BACKGROUND
Plaintiff seeks damages against the
owner of an adjacent real property and its general contractor for injuries
caused by the negligent construction of a 5-story mixed-use project (the
“Project”) to Plaintiff’s buildings and improvements.
On 08/10/2022, Plaintiff, 846 E.
Valley Blvd. LLC., filed a verified complaint alleging two causes of action –
(1) Damages and Injunctive Relief for Removal of Lateral Support and (2)
Negligence – against 860 E&A LLC., and POVAC Investments, Inc., dba Adept
Building and Construction.
On 09/24/2021, POVAC Investments,
Inc., dba Adept Building and Construction filed a Cross-Complaint alleging five
causes of action – (1) Implied Indemnity; (2) Equitable Indemnity; (3)
Contribution; (4) Express Indemnity; and (5) Breach of Contract – against MOES
1-100.
On 09/24/2021, 860 E&A LLC filed
a Cross-Complaint alleging five causes of action – (1) Implied Indemnity; (2)
Equitable Indemnity; (3) Contribution; (4) Express Indemnity; and (5) Breach of
Contract – against ROES 1-100.
After conducting initial discovery and
investigation, Plaintiff discovered that work performed by various
subcontractors in excavation, shoring, and drilling at the Project likely led
to the severe cracks and other damage to the buildings on Plaintiff’s property.
Plaintiff now seeks leave to file a FAC
to add factual allegations and to add five Doe Defendants which were
subcontractors for the Project as Defendants in this action. [The proposed FAC
is unverified because the original Complaint was only verified in order to seek
injunctive relief, which the Court denied.] Plaintiff alleges it met and
conferred with opposing counsel and the Defendants who have appeared, 860
E&A LLC, POVAC, as well as all but one of the Doe Defendants who have not
appeared (B.L. Price – Doe 1; Constructure – Doe 2; Thornton Tomasetti – Doe 4)
do not oppose this motion and would agree to stipulate to the proposed FAC
(another Doe Defendant, SY Lee – Doe 5, has been dismissed). However, Doe
Defendant, EGL Associates, Inc. (Doe 3) would not agree to stipulate to the
proposed FAC as it insisted it was not involved in the subject construction
project and contends a related entity, Environmental Geotechnology Laboratory,
Inc. (“EGL Inc.”) should be a party – EGL Inc. has been named as Doe Defendant
6 in the proposed FAC.
LEGAL STANDARD – LEAVE TO
AMEND
The
court may, in furtherance of justice and on any proper terms, allow a party to
amend any pleading. (Code Civ. Proc., § 473, subd. (a)(1); Branick v.
Downey Savings & Loan Association (2006) 39 Cal.4th 235,
242.) The court may also, in its discretion and 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. (Code Civ. Proc., §
473, subd. (a); Branick, supra, 39 Cal.4th at
242.) Judicial policy favors resolution of all disputed matters between
the parties and, therefore, the courts have held that “there is a strong policy
in favor of liberal allowance of amendments.” (Mesler v. Bragg
Management Co. (1985) 39 Cal.3d 290, 296-97; see also Ventura v.
ABM Industries, Inc. (2013) 212 Cal.App.4th 258, 268) [“Trial courts
are bound to apply a policy of great liberality in permitting amendments to the
complaint at any stage of the proceedings, up to and including trial where the
adverse party will not be prejudiced.”].) Leave to amend
is thus liberally granted, provided there is no statute of
limitations concern. (Kolani v. Gluska (1998)
64 Cal.App.4th 402, 411.) The court may deny the plaintiff’s leave
to amend if there is prejudice to the opposing party, such as delay in trial,
loss of critical evidence, or added costs of
preparation. (Id.)
Under California Rules of Court, rule 3.1324, a motion
to amend a pleading before trial must (1) include a copy of the proposed
amendment or amended pleading, which must be serially numbered to differentiate
it from previous pleadings or amendments; (2) state what allegations in the
previous pleading are proposed to be deleted, if any, and where, by page,
paragraph and line number, the deleted allegations are located; and (3) state
what allegations are proposed to be added to the previous pleading, if any, and
where, by page, paragraph, and line number, the additional allegations are
located. (Cal. Rules of Court, rule 3.1324(a).)
Further, a separate supporting declaration must
accompany the motion and must specify (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) the reason why the request for
amendment was not made earlier must accompany the motion. (Id., rule
3.1324(b).)
“Leave to amend is in general required to be liberally
granted [citation omitted], provided there is no statute of limitations
concern. Leave to amend may be denied if there is prejudice to the opposing
party, such as delay in trial, loss of critical evidence, or added costs of
preparation. [citation omitted].” (Kolani v. Gluska (1998) 64
Cal.App.4th 402, 411.)
ANALYSIS
CRC 3.1324(a)
Under California Rules of Court, rule 3.1324, a motion
to amend a pleading before trial must:
(1) include
a copy of the proposed amendment or amended pleading, which must be serially
numbered to differentiate it from previous pleadings or amendments;
Here, Plaintiff includes in its motion an Exhibit
A which is the proposed FAC.
(2) state
what allegations in the previous pleading are proposed to be deleted, if any,
and where, by page, paragraph and line number, the deleted allegations are
located; and
Here, this motion appears
to mainly seek the addition of factual allegations and parties. However, moving
party notes “removal” of two portions of the Complaint as follows:
Removal and addition of
words in prayer (at ¶¶3, 4 of Prayer of proposed FAC – page 10, lines 15-17);
and
Removal of Verification
in support of FAC (page 11, lines 1-9).
(3) state
what allegations are proposed to be added to the previous pleading, if any, and
where, by page, paragraph, and line number, the additional allegations are
located. (Cal. Rules of Court, rule 3.1324(a).)
Here, Plaintiff seeks to add the following:
1) Addition
of defined word “Project” (¶4 of proposed FAC – page 2, line 11);
2) Addition
of six (6) identified Doe Defendants:
a. Doe
1- B.L. Price Co., Inc. (“BL Price”)
b. Doe
2-Constructure, Inc. (“Constructure”)
c. Doe
3-EGL Associates, Inc. (“EGL Associates”)
d. Doe
4-Thornton Tomasetti, Inc. (“Thornton Tomasetti”)
e. Doe
5-S Y Lee Associates, Inc. (who has since been dismissed)
f.
Doe 6- Environmental Geotechnology
Laboratory, Inc. (“EGL Inc.”), as a Defendants (¶5 of proposed FAC [FAC] – page
2, lines 16-23)
3) Addition
of factual allegations against BL Price, EGL Associates, and Thornton Tomasetti
re: involvement in construction of the Project (¶6 of proposed FAC – page 2,
line 24 through page 3, line 1)
4) Addition
of factual allegations against EGL Inc. re: involvement in construction of the
Project (¶7 of proposed FAC – page 3, lines 2-6)
5) Addition
of factual allegations against BL Price, Constructure, EGL Associates and EGL
Inc. re: involvement in construction of the Project (¶8 of proposed FAC – page
3, lines 7-15)
6) Addition
of factual allegations against EGL Associates re Certificate of Merit (¶9 of
proposed FAC – page 3, lines 16-18)
7) Addition
of factual allegations against Thornton Tomasetti re Certificate of Merit (¶10
of proposed FAC – page 3, lines 19-21)
8) Addition
of factual allegations against EGL Inc. re Certificate of Merit (¶11 of
proposed FAC – page 3, lines 22-24)
9) Addition
of factual allegations re shoring system at the Project (¶18 of proposed FAC –
page 5, lines 13-20)
10) Addition
of factual allegations re areas of damage resulting from the Project (¶22 of
proposed FAC – page 6, lines 7-15)
11) Addition
of factual allegations re involvement of subcontractors in shoring, and other
work performed at the project (¶27 of proposed FAC – page 7, lines 12-19)
12) Addition
of factual allegations re failure to use ordinary care in excavation at the
Project (¶29 of proposed FAC – page 7, lines 23-26)
13) Addition
of facts re damages resulting from failure to use ordinary care in excavation
at the Project (¶30 of proposed FAC – page 7, line 27- page 8, line 7)
14) Addition
of proximate cause language re failure to use ordinary care in excavation at
the Project (¶31 of proposed FAC – page 8, line 31)
15) Addition
of facts re specific areas of damage resulting from the Project (¶32 of
proposed FAC – page 8, lines 17-20)
16) Addition
of facts re shoring of the Project (¶37 of proposed FAC – page 9, lines 6-21)
17) Addition
of word “negligence” in place of “negligent excavation” and other words added
re damage issues (¶38 of proposed FAC – page 9, lines 21-26)
18) Addition
of facts regarding five major damage issues (¶39 of proposed FAC – page 9, line
26 - page 10, line 8)
CRC 3.1324(b)
Further, under CRC 3.1324(b), a separate declaration
must accompany the motion and must specify:
(1) the
effect of the amendment;
Plaintiff attached the declaration of Kenneth Tanji
Jr. What appears to be the effect of the amendment is stated in Paragraphs 2-3
of the declaration. The proposed FAC does not add any further causes of action
and only seeks to add allegations that would allow Plaintiff to seek recovery
of meritorious causes of action against all responsible Defendants, including
new Doe Defendants 1-4, 6, B.L. Price, Constructure, EGL, Thornton Tomasetti,
and EGL Inc.
(2) why
the amendment is necessary and proper;
The Tanji Jr. Declaration doesn’t explicitly state why
the amendment is necessary and proper. However, presumably, why the amendment
is necessary and proper is explained in Paragraph 7 of Tanji Jr.’s declaration:
“Accordingly, the amendment of the complaint seeks to
add subcontractors B.L. Price (Doe 1) and Constructure (Doe 2) who were
involved in the shoring, drilling, demolition and excavation work at the
Project. Plaintiff further seeks to add EGL (Doe 3) and Thornton Tomasetti (Doe
4) for the engineering work they performed in relation to the shoring,
drilling, demolition and excavation for the Project. Finally, Plaintiff seeks
to add EGL Inc. (Doe 6) because it provided design, labor and/or materials to
the Project. As such, in June 2022 Plaintiff filed Doe Amendment Nos. 1-4 and
seeks leave from this Court to file the FAC adding EGL Inc. as a Defendant and
allegations showing how these defendants are responsible for Plaintiff’s
damages.” (Decl. Tanji Jr. ¶7.)
(3) when
the facts giving rise to the amended allegations were discovered;
This factor appears to be stated as follows:
“After conducting initial discovery and investigation,
Plaintiff discovered that work performed by various subcontractors in
excavation, shoring and drilling at the Project likely led to the severe cracks
and other damage to the buildings on Plaintiff’s property.” (Decl. Tanji Jr.
¶4.) “Plaintiff did not seek this amendment earlier because the information
indicating the liability of B.L. Price, Constructure, EGL, Thornton Tomasetti
was not obtained until in
or about May 2022, and EGL, Inc., in September 2022.” (Decl. Tanji Jr.
¶5.)
(4) the
reason why the request for amendment was not made earlier must accompany the
motion. (Id., rule 3.1324(b).)
This factor
appears to be stated based on the previously mentioned paragraphs (4-5) in
Tanji Jr.’s declaration as well as in Paragraph 6 in Tanji Jr.’s declaration as
follows:
“After review of
such information, it was decided to name B.L. Price, Constructure, EGL,
Thornton Tomasetti as Doe Defendants in June 2022. After service upon the Doe
Defendants, there was subsequent meet and confer over the next 2-3 months about
factual allegations against the Doe Defendants and Certificate of Merit against
the Doe Defendants. After the meet and confer, Plaintiff had agreements with
all Defendants except EGL/EGL Inc. to stipulate to a First Amended Complaint.
After it became clear EGL would not stipulate to a FAC, it was clear Plaintiff
had to file a Motion for Leave to file its First Amended Complaint. Attached as
Exhibit B is a true and correct copy of the unsuccessful meet and confer with
EGL/EGL Inc.” (Decl. Tanji Jr. ¶6.)
TENTATIVE
RULING
Plaintiff’s motion for leave to file
a First Amended Complaint is GRANTED. The Court will hear argument as to the
Trial date request.