Department 30, Spring Street Courthouse

July 26, 2022

19STCV42668

Defendant/Cross-Complainant/Cross-Defendant Valley Investment Co.’s Motion for Leave to Amend Cross-Complaint

 The motion is denied without prejudice.

Moving party is ordered to provide notice.

 

On November 26, 2019, Plaintiff Fan Qiu Meng (hereinafter “Plaintiff”) filed a Complaint against Defendants Valley Supermarket and Yellow River Corporation alleging general negligence and premises liability after slipping and falling on the sidewalk at the subject premises located at 1251 East Valley Blvd, Alhambra, California 91801 on November 26, 2017. (Compl., p. 4, ¶1).

On March 10, 2020, Defendant Valley Supermarket filed its Answer. 

On July 15, 2020, Plaintiff Amended her Complaint identifying Doe 1 as Valley Investment Co., Moving Defendant, as an additional Defendant. 

On December 3, 2020, Valley Investment Co. filed a cross-complaint against Defendant Valley Supermarket, Inc. 

On February 2, 2022, Valley Supermarket, Inc. filed a Motion for Summary Judgment, or in the alternative, summary adjudication as to the cross-complaint of Valley Investment Co. This motion is set to be heard on August 25, 2022.

On May 12, 2022, Valley Investment Co. filed this motion requesting leave to amend the cross-complaint filed against Valley Supermarket on December 3, 2020. 

Moving Party Valley Investment Co. seeks leave to amend its cross complaint to allow a complete determination of the controversies between the parties in one action. Specifically, the express terms of the lease agreement, subsection 2., Common Areas, Lessee’s Rights, contain a provision that potentially indemnifies the owner of the property. (Leave to File [sic]Cross-Complaint, p. 8, ¶1).  

Valley Supermarket, Inc. opposes Valley Investment Co.’s motion for leave to amend the cross-complaint on the grounds that because they have already filed a motion for summary judgement, or in the alternative, summary adjudication, the plaintiff of this case cannot establish any triable issues of fact against Valley Supermarket, Inc. (Opposition, p. 2). Additionally, Valley Supermarket, Inc. asserts that the request to amend this cross-complaint brought two years after Valley Investment Co. was added to case, is untimely. (Id). 

Valley Investment Co. argues that the reason they delayed in filing this request for leave to amend the cross-complaint is because the attorney for Valley Investment Co. did not discover the potential breach of contract issue that could possibly require the indemnification of Valley Investment Co. until recently. (Reply at p. 3). Additionally, Valley Investment Co. maintains that no prejudice will result if granted leave to amend because the current trial date is scheduled for February 22, 2023, which is seven months from the hearing of this instant motion. (Id).  

California Rules of Court 3.1324 establishes the requirements with which a motion seeking leave to amend must comply. 

Subdivision (a) requires that: (1) the proposed amended pleading be serially numbered to differentiate it from previous pleading; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where precisely those allegations are located; and (3) state what allegations are proposed to be added, if any, and where precisely those allegations  are located.

Subdivision (b) requires that 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. 

Valley Investment’s motion complies with none of these requirements.

Indeed, the only mention of the delay in “discovering” a provision of the contract that was always in the possession of Valley Investment is in the reply brief where it is asserted that “a new licensed attorney was assigned to this case on December 11, 2020, and later discovered the breach of contract issue upon further review.” (Opposition at pg. 4.)

This information is not in a declaration. This information does not explain why the claim was not brought in the original cross-complaint which was filed prior to the assignment of the new attorney on December 11, 2020. This information does not explain why it took any attorney, new or otherwise, to “discover” the new cause of action. 

Valley Investment brings its motion pursuant to CCP Sections 428.10(c), 428.50 and 473.  None of these sections of the Code of Civil Procedure support the granting of the motion filed here. Valley Investment has not provided any explanation as to what happened here and why it is therefore in the interests of justice to grant its motion when a motion for summary judgment was filed three months before the motion to amend the cross-complaint. (Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal. App.4th 1263, 1280 [“[i]t would be patently unfair to allow plaintiffs to defeat [the] summary judgment motion by allowing them to present a ‘moving target’ unbounded by the pleadings.”]; Melican v. Regents of Univ. of California (2007) 151 Cal.App4th 168, 176.)

Since Valley Investment did not come close to complying with the requirements for this type of motion, the Court must deny it.