Judge Gary I. Micon, Case Number: 22CHCV00392, Date: 2024-01-30 Tentative Ruling

Judge: Gary I. Micon, Case: 22CHCV00392, Date: 2024-01-30 Tentative Ruling

Case Number: 22CHCV00392 Hearing Date: January 30, 2024 Dept: F49

Dept. F-49

Date: 1-30-24

Case # 22CHCV00392

Trial Date: N/A

MOTION TO FILE AND SERVED FIRST AMENDED COMPLAINT

MOVING PARTY: Plaintiffs Aqua Blue Construction, Inc., and Britton Julien

RESPONDING PARTY: Defendant John Goshorn

RELIEF REQUESTED

Plaintiffs have requested that the Court permit Plaintiffs to file and serve their First Amended Complaint. Plaintiffs have also requested that the Court lift the stay on these proceedings and re-assign the case to the Court’s docket. Finally, Plaintiffs have requested that the Court permit Plaintiffs to re-file and re-serve their demurrer and motion to strike portions of Defendant John Goshorn’s Cross-Complaint.

SUMMARY OF ACTION

Plaintiffs Aqua Blue Construction, Inc., and Britton Rodne Juliet (Plaintiffs) filed this action on May 31, 2022, after Defendant John Goshorn (Defendant) allegedly failed to pay for change orders to a pool and spa construction contract.

This matter was sent to arbitration on December 29, 2022. After the costs for arbitration began to add up, Plaintiff Aqua Blue Construction was unable to pay the arbitration invoices. Defendant terminated the arbitration proceedings around the same time. Both Aqua Blue and Defendant want to lift the stay on the proceedings for arbitration and return the case to the Court’s docket.

Plaintiffs filed this motion on December 15, 2023. Plaintiffs argue that lifting the stay is proper under the circumstances and allowing the matter to be reassigned back to the Court’s docket preserves Plaintiffs’ right to adjudicate their claims. Plaintiffs also request that the Court grant permission to file and serve their First Amended Complaint, which expands upon the fraud allegations in the complaint and adds Tiana Goshorn as a Defendant. Plaintiffs claim that it became evident in the discovery process during arbitration that Tiana Goshorn is an indispensable party to the proceedings. Plaintiffs also request that the Court allow them to re-file and re-serve their demurrer and motion to strike portions of Defendant’s cross-complaint. These motions were taken off calendar when the case was sent to arbitration.

Defendant does not oppose lifting the stay or allowing Plaintiffs to re-file their demurer with motion to strike. Defendant opposes allowing Plaintiffs to amend their complaint to add Tiana Goshorn as a Defendant because Plaintiffs have no basis for failing to have named Tiana Goshorn in the original complaint because the alleged facts in the proposed complaint were known to Plaintiffs from the outset. Defendant also argues that laches should bar the filing of an amended complaint. Alternatively, Defendant requests that Plaintiffs’ motion be continued because of Defendant’s request for terminating sanctions that is set to be heard with Defendant’s motion for sanctions on April 8, 2024.

Plaintiffs argue in their reply that Defendant does not cite any legal authority to support his objections to naming Tiana Goshorn as a party in the proceedings and permitting Plaintiffs to file a first amended complaint. Plaintiffs also argue that Defendant does not include any support for his laches argument. Plaintiffs also argue against Defendant’s request that the matter be continued because of the terminating sanctions motion.

RULING: Granted in part and denied in part

Defendant filed objections to the declarations of K.W. Kampe III and Britton Roden Julien. However, Plaintiffs object to Defendant’s objections because the objections are not drafted in conformity with Cal. Rules of Court Rule 3.1354. That rule requires objections to be numbered consecutively and to identify the language being objected to by exhibit, title, page, and line number. It also requires that the objectionable statement be set forth in complete form, and to state the grounds for each objection with a specific ground for the objection. Plaintiffs’ objections fail to do all of this. Therefore, the Court need not consider Plaintiffs’ objections.

Plaintiffs have also objected to the proposed order that Defendant included with his opposition because the proposed order proposes advancing the hearing on Defendant’s motion for sanctions. Defendant proposed this without notice, motion, or citing authority. Therefore, Defendant’s proposed order may be stricken pursuant to CCP § 436.

Both parties have requested that the stay be lifted and that the motion be placed back on the Court’s docket. The Court grants this request to lift the stay. The case is added to the Court’s docket.

Defendant has not opposed Plaintiffs’ request to re-file and re-serve Aqua Blue’s demurrer and motion to strike. The Court grants this request. Plaintiff Aqua Blue may re-file and re-serve its demurrer with motion to strike within 30 days.

The only issue left is whether Plaintiffs may amend their complaint.

This court is authorized, in its discretion, to “allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars . . .” (CCP § 473(a)(1).) Code of Civil Procedure § 576, likewise, provides that “any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment to any pleading . . .” (CCP § 576.) The determination of whether to grant leave to file an amended pleading rests in the court’s sound discretion.

Leave to amend is to be liberally granted at any stage in the proceedings, up to and including trial. (Magpali v. Farmers Group, Inc. (1986) 48 Cal.App.4th 471, 487; see also County of Sanitation Dist. No. 2 of Los Angeles County v. Kern County (2005) 127 Cal.App.4th 1544, 1618 (noting that a plaintiff may be granted amendment even at the time of trial).) To overcome the policy of liberally granting amendments at any stage of litigation, a defendant must show both actual prejudice and inexcusable delay. (Magpali, 48 Cal.App.4th at 487.) Prejudice exists where an amendment to a complaint would result in a delay of trial; loss of critical evidence; added costs of preparation; and increased burden of discovery. (Id. at 486-488.)

Motions for leave to amend must also meet certain procedural requirements. For instance, Cal. Rules of Court Rule 3.1324(a) requires that the motion “(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.”

Additionally, Rule 3.1324(b) requires that the declaration in support of a motion for leave to file an amended complaint must state: “(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.”

Plaintiffs’ motion claims that “[d]uring the discovery process in arbitration, it became readily apparent that Tiana Goshorn is an indispensable party to the proceedings both as an active participant in contract negotiations, but also as a person knowledgeable as to demands for and acceptance of change order during construction as well as discussions with Aqua Blue and Mr. Julien on how the parties, as man and wife, agreed to pay for the change orders as requested.” (Motion at p. 11.) However, Plaintiffs’ motion does not say why this was not uncovered until discovery. Plaintiffs’ motion also does not state what allegations are proposed to be added to or deleted from the previous pleading. Without this information, the Court cannot grant Plaintiffs’ motion.

Plaintiffs’ motion for leave to file an amended complaint is denied.

Moving party to give notice.