Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

 

This case arises from a dispute between a homeowner and a restoration company.  Plaintiff Victor Alexandroff’s home sustained water damage.  He hired Defendant D&A Endeavors, who was doing business as ServPro, to perform cleaning and restoration services and to prepare estimates that Plaintiff could then use to file a claim with his insurer.  Plaintiff alleges that Defendant’s estimates were so “poorly contrived,” he fired Defendant.  After the termination, Plaintiff alleges Defendant invoiced him $72,607.78 for the restoration work it performed.  Defendant also claimed it was entitled to a percentage of any insurance payout Plaintiff received.   

The original 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 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 claims for violation of the unfair competition law and breach of the implied covenant of good faith and fair dealing.   

Plaintiff then moved for leave to amend his Complaint, which this Court granted.  The First Amended Complaint (“FAC”) added a new claim for negligence, alleging that “the brief remediation work that Servpro actually performed at the Property caused silica dust to be dispersed throughout the Property and personal property contained therein.”  (FAC ¶27.)   

This hearing is on Defendant’s motion for leave to amend its cross-complaint to add two new defendants -- L.A. Floors Removal & Concrete Plumbing (“L.A. Floors”) and Jeffrey Frankel Plumbing Inc. (“Frankel”) -- and two new claims for (1) equitable indemnity and (2) contribution/apportionment of fault.  Defendant argues that these proposed new defendants were actually responsible for the spread of the silica dust.  Plaintiff hired Frankel to break up the concrete slab to locate and repair the water leak, and Plaintiff hired L.A. Floors to remove the floors and grind down the concrete slab.  According to Defendant, the grinding and demolition work by these companies, performed without proper containment and dust collectors, caused silica dust to be dispersed as Plaintiff alleges.  Plaintiff does not oppose the motion for leave to amend.     

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 

Defendant’s declaration in support of the motion satisfies the requirements under CRC Rule 3.1324.  Defendant identifies the amendments, their effect, and the information that prompted the amendment.  (Ruttenberg Decl. ¶¶4-6.) 

Defendant claims that it only learned the facts that required the proposed amendments during discovery, investigation, and in preparing for the mediation on August 8, 2024.  (Id. ¶6.)  Defendant does not elaborate further as to what specific facts were obtained through discovery or investigation and when they were uncovered.  Accordingly, the Court cannot determine whether there was unreasonable delay.   

However, 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, trial has been continued to March 24, 2025 and Plaintiff has not argued that he is prejudiced.  Given Plaintiff has not shown prejudice, the Court grants leave to amend.   

CONCLUSION 

Based on the foregoing, the Court GRANTS Defendant’s motion for leave to file a first amended cross-complaint.   

 

IT IS SO ORDERED. 

 

DATED: September 16, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court