Judge Joel L. Lofton, Case 21BBCV00059 2023-03-27 Tentative Ruling

Judge: Joel L. Lofton, Case: 21BBCV00059, Date: 2023-03-27 Tentative Ruling

Case Number: 21BBCV00059 Hearing Date: March 27, 2023 Dept: X

Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE: March 27, 2023 TRIAL DATE: August 15, 2023

CASE: MONROVIA-MYRTLE, LLC, a California limited liability company, v. CALASIA CONSTRUCTION, INC., a California corporation; CDO MONROVIA LLC, a California limited liability company; EDGAR D. ESPANA, an individual; DIANA ESPANA, an individual; and DOES 1-100, inclusive.

CASE NO.: 21BBCV00059

MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT

MOVING PARTY: Plaintiff Monrovia-Myrtle

RESPONDING PARTY: Defendants CDO Monrobia, LLC and CalAsia Construction, Inc.

SERVICE: Filed February 27, 2023

OPPOSITION: Filed March 13 and 14, 2023

REPLY: Filed March 20, 2023

RELIEF REQUESTED

Plaintiff moves for leave to file a second amended complaint (“SAC”).

BACKGROUND

This case arises out of Plaintiff Monrovia-Myrtle, LLC’s (“Plaintiff”) claim that Defendants CalAsia Construction, Inc. (“CalAsia”), CDO Monrovia LLC (“CDO”), Edgar D. Espana, and Diana Espana breached the lease agreement for property located at 423 South Myrtle Avenue, Monrovia, California 91016 (“Subject Property”) and acted negligently in conducting construction, repairs, and improvements. Plaintiff filed a first amended complaint (“FAC”) on May 28, 2021, alleging five causes of action for: (1) negligence, (2) trespass, (3) negligent misrepresentation, (4) breach of lease, and (5) breach of guaranty.

TENTATIVE RULING

Plaintiff’s motion for leave to file a Second Amended Complaint is GRANTED.

The parties are ordered to meet and confer prior to the status conference scheduled for April 24, 2023. At the status conference, the parties are required to inform the court that all pending discovery issues have been resolved or the parties will be sent to a discovery referee with the costs to be borne by counsel for the parties.

LEGAL STANDARD

Code of Civil Procedure section 473, subdivision (a)(1), provides in relevant part: “The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.” Trial courts have discretion to permit amendments, which should be exercised liberally in favor of amendments to promote the judicial policy to resolve all disputed matters in one lawsuit. (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047. “But this policy applies only [w]here no prejudice is shown to the adverse party.” (Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 175, quotation marks omitted.)

DISCUSSION

Plaintiff moves for leave to file a SAC to allege a cause of action for intentional misrepresentation and a prayer for punitive damages. Plaintiff provides it had previously dismissed its cause of action for intentional misrepresentation and prayer for punitive damages as a means of facilitating mediation after it discussed with CalAsia’s counsel (Weg Decl. ¶ 3.) Plaintiff provides that the parties have not reached an agreement through mediation, and it now seeks to reallege the dismissed allegations.

California Rules of Court Rule 3.1324 (“Rule 3.1324”), subdivision (b), requires a motion to amend a pleading to include a declaration that provides: “[¶] (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.”

Plaintiff’s motion and attached declaration do not expressly address the requirements of Rule 3.1324. Nonetheless, Plaintiff explains that the effect of the amendment is to reallege a cause of action for misrepresentation and a prayer for punitive damages. (Weg Decl. ¶ 12.) Plaintiff provides the amendment is necessary and proper because the previous allegations were dismissed to facilitate mediation. (Id. ¶¶ 4-5.) Plaintiff provides it did not believe mediation would resolve the case, necessitating an amendment. (Id. ¶ 12.)

In opposition CDO and CalAsia argue that it would suffer prejudice if Plaintiff was allowed to file its SAC. As a preliminary matter, CDO argues that Plaintiff’s contention that all the defendants had agreed to allow Plaintiff to reallege the dismissed claims is incorrect. CDO argues that Plaintiff discussed only with the counsel of CalAsia, who was not authorized to speak on behalf of CDO.

CDO and CalAsia also argue that allowing Plaintiff to allege additional claims will prejudice it because it will be forced to defend against additional claims. In this instance, however, Plaintiff’s claims are based on the same or similar set of general allegations previously alleged and the delay, by itself, is not so egregious to cause prejudice.

The court is however, concerned with the language used by Plaintiff’s counsel in regards to how they might conduct future discovery should the Defendants refuse to stipulate to allowing Plaintiff to file a SAC.

“ ‘Generally, “the trial court has wide discretion in determining whether to allow the amendment, but the appropriate exercise of that discretion requires the trial court to consider a number of factors: ‘including the conduct of the moving party and the belated presentation of the amendment.’ ” ’ ” (Eng v. Brown (2018) 21 Cal.App.5th 675, 706-707.)

CDO and CalAsia would certainly face prejudice if faced with “aggressive/punitive discovery”, if each of its principals were noticed for deposition, and if Plaintiff pursued litigation to the bitter end with no compromises. (Willner Decl. ¶ 10, Exhibit B.) It is a little confusing that Plaintiff intimates to the parties that it will pursue aggressive discovery and additional depositions but simultaneously represents to this court that “no new discovery will be required here” and that “[t]he same depositions of the same parties will take place”. (Reply at p. 8:17-19.) The court invites Plaintiff counsel to explain this apparent inconsistency at the motions hearing date.

Ultimately, the court finds that there is currently no prejudice to CDO or CalAsia if Plaintiff is allowed to file its SAC. Thus, the court will grant Plaintiff’s motion to file its SAC. However, as stated earlier, the court is has read the parties’ communication and is concerned about the tenor of the parties’ dispute.

“A central purpose of the Discovery Act was to keep the trial courts out of the business of refereeing day-to-day discovery by requiring parties to conduct discovery and resolve disputes with minimal judicial involvement.” (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 2543-54.) “[O]ne of the ‘running themes’ of the Discovery Act was to avoid delays and reduce the judicial costs of litigating discovery disputes.” (Ibid.) “[T]rial courts have authority under the act to manage discovery and to prevent misuse of discovery procedures.” (People v. Superior Court (Cheek) (2001) 94 Cal.App.4th 980, 981.)

The court therefore adds an additional ruling to its order. The parties are directed to resolve any discovery disputes within the next 30 days. A status conference will be held on April 24, 2023. At the status conference the parties will inform the court that they have resolved all discovery issues or the parties will be sent to a discovery referee, with the costs of the referee to be borne by the attorneys and not their clients.

CONCLUSION

Plaintiff’s motion for leave to file a Second Amended Complaint is GRANTED.

Plaintiff is ordered to file and serve its SAC within 10 days of notice of this order.

Dated: March 27, 2023 ___________________________________

Joel L. Lofton

Judge of the Superior Court