Judge: Holly J. Fujie, Case: 20STCV26356, Date: 2022-09-22 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

Case Number: 20STCV26356    Hearing Date: September 22, 2022    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MERCHANTS BONDING COMPANY (MUTUAL), Plaintiff, vs. RAYAN NISSANI, et al., Defendants. 

CASE NO.: 20STCV26356 [TENTATIVE] ORDER RE: MOTION FOR LEAVE TO FILE AMENDED COMPLAINT

 Date: September 22, 2022
Time: 8:30 a.m.
 Dept. 56
Non-Jury Trial: May 8, 2022

MOVING PARTY: Plaintiff The Court has considered the moving papers. No opposition papers were filed. Any opposition papers were required to have been filed and served at least nine court days before the hearing under California Code of Civil Procedure (“CCP”) section 1005, subdivision (b)

BACKGROUND This action arises out of an indemnitor/indemnitee relationship. The currently operative complaint (the “Complaint”) alleges: (1) breach of the NBA Indemnity Agreement; (2) specific performance of the NBA Indemnity Agreement; (3) breach of the R&H Indemnity Agreement; and (4) specific performance of the R&H Indemnity Agreement. 

On August 12, 2022, the Court denied Plaintiff’s motion for summary adjudication (the “MSA”) on the issues of Defendants’ liability and Plaintiff’s damages for breaches of the indemnity agreements at issue in the Complaint. The Court denied the MSA on the grounds that it was unclear due to Plaintiff’s failure to comply with the summary adjudication notice requirements provided for under California Rules of Court (“CRC”), rule 3.1350(b).

 On August 25, 2022, Plaintiff filed a motion for leave to file a first amended complaint (the “Motion”). The proposed first amended complaint (the “FAC”): (1) adds causes of action for promissory fraud, fraudulent inducement and negligence; (2) removes R&H Automotive as a Defendant due to its suspended status; (3) clarifies some of the breach of contract causes of action; and (4) removes the specific performance causes of action.

DISCUSSION CCP section 473 permits the trial court in its discretion to allow amendments to pleadings in the furtherance of justice. CCP section 576 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 of any pleading or pretrial conference order. (CCP § 576.) There is a policy of great liberality in permitting amendments to the pleadings at any stage of the proceeding. (Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945.) An application to amend a pleading is addressed to the trial judge’s sound discretion. (Id.) If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of - 3 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 discretion. (Morgan v. Superior Court of Cal. In and For Los Angeles County (1959) 172 Cal.App.2d 527, 530.) Where no prejudice is shown to the adverse party, the liberal rule of allowance prevails. (Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564.) A judge may, however, deny a motion for leave to amend where a plaintiff has been dilatory in seeking leave to amend and such delay has prejudiced defendant. (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.) Prejudice exists where amendment would: (1) cause a delay of trial; (2) increase preparation costs; (3) change the focus of the complaint; or (4) increase discovery burdens. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-88.)

 Under California Rules of Court (“CRC”) rule 3.1324, a motion for leave to amend a pleading must be accompanied by a declaration that sets forth: (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 sooner. (CRC, r. 3.1324(b).)
 As a preliminary matter, the Motion is compliant with CRC, rule 3.1324. Plaintiff provides that it seeks to include the amendments which add the promissory fraud, fraudulent inducement and negligence causes of action as a result of the arguments and evidence presented in Defendants’ opposition to the MSA. (Declaration of Amanda L. Marutzky (“Marutzky Decl.”) ¶¶ 6-7.) The remaining amendments seek to remove allegations that are now moot and add allegations which properly identify the agreements at issue in this action.

Due to the lack of opposition, the Court GRANTS the Motion with five days leave for Plaintiff to file the proposed FAC. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

 Moving party is ordered to give notice of this ruling. 

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

 Dated this 22nd day of September 2022

Hon. Holly J. Fujie
Judge of the Superior Court