Judge: Edward B. Moreton, Jr., Case: 21SMCV01036, Date: 2023-02-08 Tentative Ruling
AMEND
BACKGROUND
This case arises from a dispute between a homeowner and a water damage restoration company. Plaintiff Victor Alexandroff’s home sustained water damage. (Compl. ¶17.) He hired Defendant ServPro to perform cleaning and restoration services and to prepare estimates that Plaintiff could then use to file a claim with his insurer. (Compl. ¶¶19-20.) Plaintiff alleges that Defendant’s estimates were so “poorly contrived,” he fired Defendant. (Compl. ¶25.) After the termination, Plaintiff alleges Defendant invoiced him $72,607.78 for the restoration work it performed. (Compl. ¶27.) Defendant also claimed it was entitled to a percentage of any insurance payout Plaintiff received. (Compl. ¶27.)
The Complaint alleges claims for declaratory relief, violation of the unfair competition law and breach of the implied covenant of good faith and fair dealing. Defendant has countersued for nearly $500,000 seeking to recover amounts it claims to be owed by Plaintiff.
The Court previously granted in part and denied in part a motion for judgment on the pleadings which dismissed Plaintiff’s claim for declaratory relief but left intact his other claimsfor violation of the unfair competition law and breach of the implied covenant of good faith and fair dealing.
This hearing is on Plaintiff’s motion for leave to amend his complaint. Plaintiff seeks leave to add a claim for negligence and add further factual allegations to support the existing and new claims, particularly that Defendant failed to use proper measures to contain the dust in the remediation process which resulted in dust permeating Plaintiff’s property and causing further damages above and beyond the initial water leak. Plaintiff alleges the new claim and allegations were uncovered after he retained new counsel in November 2022, who conducted a thorough review of the pleadings, discovery conducted to date, as well as other available information. Defendant does not oppose the motion to amend but requests a six month continuance of the trial date. Plaintiff does not oppose the request for a continuance.
LEGAL STANDARD
Code of Civ. Proc. § 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).)
DISCUSSION
Plaintiff’s declaration in support of the motion satisfies the requirements under CRC Rule 3.1324. Plaintiff’s counsel identifies the amendments, their effect, why the amendment is necessary and proper, when the facts giving rise to the new allegations was discovered, and the reason the amendment is being sought now. (Fernald Decl. ¶¶2-7.)
The liberal policy favoring amendment counsels in favor of granting Plaintiff leave to file his second amended complaint. The amendments seek to add a new claim and new facts to support the new and existing claims. There are no arguments that the amendments fail to state a claim as a matter of law. (See, e.g., Kittredge Sports Co. v. Superior Court (1989) 213
Cal.App.3d 1045, 1048 (trial court abused its discretion in denying leave to amend to add additional claims; even if the new claims present a novel legal theory, “the preferable practice would be 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”).)
Moreover, there is no evidence of delay. Plaintiff retained new counsel in November 2022 who, after a review of the record, filed a motion for leave to amend in early January 2023. Even if there was delay, delay alone will not justify denying leave to amend. Although it is true “a court may deny a good amendment in proper form where there is unwarranted delay in presenting it,” it remains the case that “where there is no prejudice to the adverse party, it may be an abuse of discretion to deny leave to amend.” (Fair v. Bakhtiari (2011) 195 Cal.App.4th 1135, 1147; see also Kittredge Sports co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048 (“[Defendant] contends [Plaintiff] unreasonably delayed moving to amend… [e]ven if this were so, it is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.”)); Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761 (“[I]t is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.”); Thompson Pacific Construction, Inc. v. City of Sunnyvale (2007) 155 Cal.App.4th 525, 545 (“In spite of this policy of liberality, a court may deny a good amendment in proper form where there is unwarranted delay in presenting it. On the other hand, where there is no prejudice to the adverse party, it may be an abuse of discretion to deny leave to amend.”) (citations omitted).
Prejudice exists, for example, where the plaintiff unduly delayed in seeking leave to amend, and the amendment will require a trial continuance and a reopening of discovery on the eve of trial. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 488 (“Where the trial date is set, the jury is about to be impaneled, counsel, the parties, the trial court, and the
witnesses have blocked the time, and the only way to avoid prejudice to the opposing party is to continue the trial date to allow further discovery, refusal of leave to amend cannot be an abuse of discretion”).) Here, we are not at the eve of trial. Trial is set for April 2023, and the discovery cutoff is in March 2023. Further, it is difficult to argue prejudice when the amendments are based on the general same set of facts as the original complaint. (Martinez v. Dynamic Auto Images, 2017 Super. LEXIS 70279 at *1-*2 (no showing of prejudice where new claim is based on same general set of facts as original complaint; trial is months away and there is sufficient time to conduct additional discovery).)
Defendant does not oppose the motion to amend but requests a trial continuance of six months. Plaintiff does not oppose the request for continuance. The Court will therefore grant the motion for leave to amend as well as the request for continuance.
CONCLUSION
Based on the foregoing, the Court GRANTS Plaintiff’s motion for leave to file a second amended complaint. Plaintiff is directed to file the second amended complaint today. The Court will continue the final status conference to September 29, 2023 and the trial date to October 9, 2023.
IT IS SO ORDERED.
DATED: February 8, 2023
___________________________
Edward B. Moreton, Jr.
Judge of the Superior Court
