Judge: Gary Y. Tanaka, Case: 19TRCV00900, Date: 2022-09-29 Tentative Ruling

Case Number: 19TRCV00900    Hearing Date: September 29, 2022    Dept: B

PROCEEDINGS

Hardrock Management Corporation v. Austin Building & Design, et al.

19TRCV00900

1. Austin Building & Design’s Motion to Compel Further Responses to Special Interrogatories, Set Two 

2. Austin Building & Design’s Motion for Leave to File First Amended Cross-Complaint

    

   TENTATIVE RULING

    

               Austin Building & Design’s Motion to Compel Further Responses to Special Interrogatories, Set Two, is granted.

    

               Austin Building & Design’s Motion for Leave to File First Amended Cross-Complaint is denied.

    

               Background

    

               Plaintiff Hardrock Management Corporation (“Hardrock”) filed its Complaint on October 8, 2019.  Plaintiff’s First Amended Complaint was filed on December 18, 2019. Plaintiff alleges the following facts. Northrup Grumman hired Austin as a general contractor on a construction project at its facility in Redondo Beach, California called the "M2 Modernization Project." Austin hired Plaintiff as a drywall subcontractor on the Project.  Plaintiff alleges damages for work performed on the project which was never paid. Plaintiff alleges the following cause of action: 1. Breach of Written Contract; 2. Open Book Account; 3. Account Stated; 4. Quantum Meruit; 5. Recovery of Mechanic’s Lien Bond; 6. Recovery on Contractor’s License Bond.

    

               Defendant Austin Building & Design (“Austin”) filed a Cross-Complaint on January 21, 2020.  Cross-Complainant alleges that Cross-Defendant abandoned the project without good cause and that Cross-Complainant was required to hire a replacement subcontractor to complete Cross-Defendant’s work.

    

               Motion to Compel Further Responses to Special Interrogatories

    

               Where responses to interrogatories have been served but the requesting party believes that they are deficient because the answers are evasive or incomplete, or, because an objection is without merit, that party may move for an order compelling a further response.  CCP § 2030.300(a).  Notice of the motion must be given within 45 days after service of verified responses in question, or any verified supplemental responses.  CCP § 2030.300(c).  The motion must be accompanied by a meet and confer declaration in compliance with CCP § 2016.040.  CCP § 2030.300(b).

    

               Meet and Confer

    

               Defendant set forth a meet and confer declaration in substantial compliance with CCP § 2031.310(b)(2).  (Declaration, Hannah Ellenhorn, ¶¶ 5-7.)

    

               Motion to Compel

    

               Defendant’s motion is granted as to Special Interrogatories 68 and 69.  Plaintiff served responses that consisted of objections.  However, all objections had been waived by Plaintiff’s untimely responses. Therefore, Defendant’s motion is granted. Plaintiff is ordered to serve further responses, without objections, within 10 days of this date.

    

               Sanctions

    

               Defendant’s request for monetary sanctions is granted. The Court finds that the amount of sanctions requested of $1,000.00 to be reasonable. Plaintiff and Plaintiff’s attorney are sanctioned the total amount of $1,000.00 payable to moving party within 30 days of this date.

    

               Motion for Leave to Amend

    

               The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading.  Code Civ. Proc., §§ 473 & 576.  Judicial policy favors resolution of all disputed matters between the parties and, therefore, leave to amend is generally liberally granted.  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.  However, the court 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.   Cal. Casualty General Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 281.

    

               The application for leave to amend should be made as soon as the need to amend is discovered.  The closer the trial date, the stronger the showing required for leave to amend.  If the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the court has the discretion to deny leave to amend.  Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.  Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, or added costs of preparation such as an increased burden of discovery.  Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488.

    

               Pursuant to Cal. Rules of Court, Rule 3.1324(a): A motion for leave to amend must: “(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.”

    

               Cal. Rules of Court, Rule 3.1324(b) also requires that the moving party must submit a separate declaration specifying:

               “(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.”

    

               Defendant moves for an order to grant leave to file a First Amended Cross-Complaint. While uncertain because of a defect in the notice of motion, Cross-Complainant apparently seeks to add causes of action Intentional and Negligent Misrepresentation, and to assert new damages.

    

               Here, Cross-Complainant did not comply with Rule 3.1324(a).  In addition, Cross-Complainant did not comply with Rule 3.1324(b).  No competent declaration was submitted to attempt to meet this requirement.  The entirety of the declaration of moving party’s counsel states as follows: “I, Sean Dowsing, do declare and state: 1. I am an attorney at law licensed to practice before all the courts of the State of California. I am an attorney in the law firm of Manning & Kass, Ellrod, Ramirez, Trester LLP, attorneys of record for Defendant AUSTIN BUILDING & DESIGN dba THE AUSTIN COMPANY (hereafter "Defendant") in this action. I am completely familiar with the facts, pleadings and records in this action, and if called upon to testify I could and would competently testify. I declare under penalty of perjury, under the laws of the State of California, that the foregoing is true and correct. Executed on September 1, 2022, at Costa Mesa, California.” (Decl., Sean Dowsing). None of the required facts of Rule 3.1324(b) was set forth.

    

               The Court also notes that the notice of motion is defective as it refers to completely different parties, causes of action, and the notice also gives the wrong court location, address, and time, and also fails to provide the date of the hearing in the notice.

    

               Therefore, Cross-Complainant’s motion for leave to file First Amended Cross-Complaint is denied.

    

               Moving party is ordered to give notice of this ruling.