Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This lawsuit arises from property damage connected to work performed by Defendant Southern California Edison’s (“SCE’s”) outside contractor, Defendant Edison Power Constructors, Inc. (“EPC”).  While replacing a deteriorated SCE utility pole on Topanga Canyon Boulevard, EPC inadvertently drilled into an underground drainage culvert owned by Defendant Caltrans, and then set the replacement pole into the broken pipe.  When EPC discovered the damage, it attempted to stabilize the pole with foam and gravel, which further congested the culvert.  During a subsequent rainstorm, the blockage to the culvert caused a mudslide on Plaintiff William Howell’s property located downgradient from the damaged pipe. 

Plaintiff sued Caltrans for inverse condemnation.  Caltrans moved for summary judgment.  The Court granted summary judgment in favor of Caltrans, and denied Plaintiff’s Code Civ. Proc. 473(b) motion to set aside the MSJ order.     

Plaintiff also sued SCE for inverse condemnation.  SCE moved for summary adjudication.  In opposition to the motion, Plaintiff asserted a theory of liability that had not been alleged in its Third Amended Complaint (“TAC”).  In the TAC, Plaintiff alleged that SCE’s construction policies were inadequate because they only required SCE’s contractors to conduct a legally mandated DigAlert but did not mandate any particular procedures that would locate underground facilities not identified by DigAlert such as the subject culvert.  Meanwhile in its opposition to the motion for summary judgment, Plaintiff alleged an entirely different theory:  Plaintiff claimed SCE had failed to properly supervise its contractors and inspect their work which Plaintiff argued was a deliberate policy decision to shift the risk of future loss to property owners like Plaintiff rather than absorb the risk as part of the cost of the improvement paid by the community at large.  The Court granted SCE’s motion for summary judgment on the ground that the TAC delimited the issues for summary judgment, and the TAC did not allege the theory of liability on which Howell’s opposition was based.   

Plaintiff now seeks leave to amend its inverse condemnation claim to add the theory of liability articulated in its opposition to SCE’s motion for summary adjudication.  Additionally, the motion seeks leave to add allegations concerning a 20 foot high crib wall to Plaintiff’s inverse condemnation claim against Caltrans.  The motion also seeks leave to remove allegations and relief that were either dismissed or struck from the TAC, based on the Court’s October 14 and 19, 2022 minute orders and conform the pleadings to serially number the causes of action and allegations with the October 14 and 19, 2022 minute orders. 

SCE opposes the motion on the grounds that (1) the Court has already granted a substantive motion for summary judgment; (2) Plaintiff could have alleged his theory earlier and there is no good reason for the delay, and (3) the amendment would result in prejudice to SCE because it will require a trial delay, require a new motion for summary adjudication, and necessitate a significant increase in costs. 

Caltrans opposes the motion on the grounds that (1) Plaintiff cannot seek leave to amend because Caltrans’ judgment against Plaintiff was not vacated; (2) Plaintiff was required to amend before the hearing on Caltrans’ motion for summary judgment; (3) Plaintiff alleges the crib wall is part of the Caltrans Drainage System (“CDS”) which the Court has already determined did not substantially cause damage to the Property; (4) the proposed amendment does not allege the crib wall damaged Plaintiff’s Property, and (5) Plaintiff unreasonably delayed in filing the motion, and his delay prejudices Caltrans. 

LEGAL STANDARD 

CCP § 473(a)(1), provides, in relevant part: “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.”¿ 

Under California Rules of Court Rule, rule 3.1324, subdivision (a),¿a motion to amend a pleading shall:¿ 

(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.¿¿ 

¿ 

In addition, under California Rules of Court, Rule 3.1324, subdivision (b),¿a¿separate 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 reasons why the request for amendment was not made earlier.¿ 

¿¿ 

The Court’s discretion to grant leave “should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.”¿ (Kittredge Sports Co. v. Superior Court¿(1989) 213 Cal.App.3d 1045, 1047.)¿ Ordinarily, the Court will not consider the validity of the proposed amended pleading in ruling on a motion for leave since grounds for a demurrer or motion to strike are premature.¿¿The Court, however, does have discretion to deny leave to amend where a proposed amendment fails to state a valid cause of action as a matter of law and the defect cannot be cured by further amendment.¿ (See¿California Casualty General Ins. Co. v. Superior Court¿(1985) 173 Cal.App.3d 274, 281 (overruled on other grounds by¿Kransco v. American Empire Surplus Lines Ins. Co.¿(2000) 23 Cal.4th 390).)¿¿ 

EVIDENTIARY OBJECTIONS 

The Court grants Caltrans’ Objection Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9 to the Declaration of Todd M. Lander.   

DISCUSSION 

Amendments to SCE Claim 

SCE argues that Plaintiff cannot amend his complaint to state an entirely new theory of recovery, following a grant of a summary judgment motion.  The Court agrees. 

Leave to amend may be granted after summary judgment only if (a) the complaint was found to be “legally insufficient”, and (b) the amendment would not state a different theory of recovery.  (Van v. Target Corp. (2007) 155 Cal.App.4th 1375, 1387-1388, fn. 2; Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 626.)  Here, the complaint was not legally insufficient; rather the Court concluded the allegations in the complaint delimited the issues for summary adjudication, and the extrinsic evidence submitted showed there was no triable issue on those allegations.  

Moreover, Plaintiff is seeking to assert a different theory of recovery which is impermissible.  (Hobson, 73 Cal.App.4th at 626 (holding that a proposed substantive amendment following a summary judgment motion “would have fundamentally and impermissibly altered her theory of recovery”); Van, 155 Cal.App.4th at 1387-1388 fn. 2 (“[Plaintiffs’] proposed amendment would not cure a legally insufficient complaint, but rather, would state a different theory of recovery.  Such an amendment is impermissible.”).)   

If a plaintiff seeks to amend his complaint based on new facts or theories, he is required to seek an amendment before the summary judgment hearing.  (Champlin/GEI Wind Holdings, LLC v. Avery (2023) 92 Cal.App.5th 218, 224-225 (trial court properly denied plaintiff’s oral request to amend the complaint that was first raised at the summary judgment hearing); Oakland Raiders v. Nat’l Football League (2005) 131 Cal.App.4th 621, 648 (“a plaintiff wishing ‘to rely upon unpleaded theories to defeat summary judgment’ must move to amend the complaint before the hearing”); Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1265 (“If the opposing party’s¿evidence would show some factual assertion, legal theory, defense or claim not yet pleaded, that party should seek leave to amend the pleadings before the hearing on the summary judgment motion.”); Fisher v. Larsen (1982) 138 Cal.App.3d 627, 649 (leave to amend properly denied where Plaintiff knew for over five months claims had not been properly pleaded and took no action to amend until after summary judgment was granted against it). 

Here, Plaintiff made no effort to seek leave to amend his complaint until he faced a summary judgment ruling against him.  His complaint was not found to be legally insufficient, and his amendment asserts an entirely different legal theory.  Under these circumstances, the Court denies Plaintiff’s motion for leave to amend its inverse condemnation claim against SCE.  Given this ruling, the Court declines to consider SCE’s other arguments for why leave to amend should be denied.          

Amendments to Caltrans Claim 

Caltrans argues that Plaintiff cannot seek leave to amend because the judgment in favor of Caltrans has not been vacated.  The Court agrees. 

Once judgment has been rendered, amendment of a pleading is only possible if the judgment is first vacated.  (Issa v. Alzammar (1995) 38 Cal.App.4th Supp. 1, 4.)  Here the Court entered judgment in favor of Caltrans and against Plaintiff on the sole cause of action for inverse condemnation.  The Court also denied Plaintiff’s Section 473(b) motion to set aside the judgment.  The judgment in favor of Caltrans is, therefore, still in effect.  Plaintiff must first vacate the judgment before he can seek leave to amend.  Accordingly, his motion for leave to add allegations against Caltrans is denied. 

Caltrans also argues that Plaintiff should have sought amendment before the hearing on Caltrans’ motion for summary judgment.  The Court agrees for reasons articulated above.   

As the foregoing two grounds are sufficient to warrant denial of Plaintiff’s motion to amend, the Court declines to consider other arguments raised by Caltrans to support its opposition.   

CONCLUSION 

For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART Plaintiff’s motion for leave to amend his third amended complaint.  Plaintiff has leave to remove allegations and relief that were either dismissed or struck from the TAC, based on the Court’s October 14 and 19, 2022 minute orders and conform the pleadings to serially number the causes of action and allegations with the October 14 and 19, 2022 minute orders. 

 

IT IS SO ORDERED. 

 

DATED: March 19, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court