Judge Elaine W. Mandel, Case Number: 22SMCV01974, Date: 2024-06-18 Tentative Ruling

Judge: Elaine W. Mandel, Case: 22SMCV01974, Date: 2024-06-18 Tentative Ruling

Case Number: 22SMCV01974 Hearing Date: June 18, 2024 Dept: P

Tentative Ruling

Kermanshahi, et al. v. Orbic Air, LLC, et al. Case No. 22SMCV01974

Hearing Date June 18, 2024

Defendant/Cross-Complainant The Semler Companies/Malibu dba Saddlerock Ranch’s Motion for Leave to File Amended Cross-Complaint

Plaintiffs’ decedent was injured at a wedding at Saddlerock Ranch, owned by moving defendant Semler Companies. Defendant Butterfly Floral created a floral arch; defendant Orbic Air flew a helicopter into the arch, which fell, striking plaintiff’s decedent.

On March 23, 2023 Semler cross-complained for indemnity, contribution and apportionment and declaratory relief. Against Hakakian, Khakshoy, and Zoes 1-50, Semler alleged breach of contract. On May 17, 2024 Semler moved to for leave to file an amended cross-complaint, adding causes of action for fraud, negligence, negligent misrepresentation, breach of contract and breach of implied covenant of good faith and fair dealing. Semler attached a proposed first amended cross-complaint (FACC) to the motion. Butterfly and Orbic oppose.

The case was filed October 25, 2022; no trial date has been set.

Courts liberally exercise discretion to allow amendments to pleadings at any time. Desny v. Wilder (1956) 46 Cal.2d 715, 751. Leave to amend may be denied when the party seeking amendment delayed without justification. Melican v. Regents of Univ. of Calif. (2007) 151 CA4th 168, 176. A motion for leave to amend a pleading must state when the facts giving rise to the amended allegations were discovered and the reasons why the request for the amendment was not made earlier. Cal. Rules of Court 3.1324(b).

A motion to amend must: (1) include a copy of the proposed amendment, (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).

In moving to amend a pleading, the moving party “must” file a declaration that specifies: (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. Cal. Rules of Court 3.1324(b).

Semler argues both Butterfly Floral and Orbic Air named Semler as an additional insured, but both carriers denied coverage. Glaser Decl. ¶10. Semler asserts that Hakakian, Khakshoy, Kotelyan and her company, Butterfly Floral, and Orbic Air fraudulently induced Semler through Certificates of Insurance to allow them to put temporary insecure structures in Semler’s venue and allow the fly over, even though the helicopter was not on Orbic Air’s Certificate of Insurance and the pilot was not employed by Orbic Air. Glaser Decl. ¶¶ 12-13.

Based on this new information, Semler asserts additional claims as stated in the proposed amended cross-complaint.

Cross-defendants Butterfly and Orbic each oppose, arguing lack of compliance with Rule 3.1324 because Semler does not indicate what is sought to be added via the FACC. The court disagrees. Semler’s motion states the allegations proposed to be added. Second, cross-defendants argue the proposed FACC is uncertain or fails to state sufficient facts to support many of its new causes of action. This argument fails because these types of issues are addressed at the demurrer stage.

The oppositions argues the FACC fails to state a cause of action, including failure to plead the fraud claims with sufficient factual specificity. Orbic also argues the FACC runs afoul of the statute of limitations. The statute relates back to the original date of the incident, so this argument is unavailing and not appropriate for consideration on a motion for leave to amend. Likewise, arguments regarding lack of factual specificity are for the court to consider on a challenge to the pleadings, not on the motion for leave to amend.

However, the moving papers only partially comply with Rule 3.1324. There is no representation as to when the facts giving rise to the amendment were discovered or why the request to amend was not made earlier. Cal. Rules of Court 3.1324(b)(3)-(4). Moving party must provide a supplemental declaration in this regard.