Judge: Jon R. Takasugi, Case: 22STCV05421, Date: 2023-08-23 Tentative Ruling

Case Number: 22STCV05421    Hearing Date: August 23, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Plaintiff’s motion to file a TAC is GRANTED.

            On 2/22/2022, Plaintiff Skyler Wells (Plaintiff) filed suit against Strategic Acquisitions, Inc., BDR, Inc., Open House Realty & Investments, LLC, and Peter Baer. On 2/15/2023, Plaintiff filed a third amended complaint (TAC) alleging: (1) breach of contract; (2) construction defects; (3) construction defects; (4) negligence; (5) negligence; (6) negligent infliction of emotional distress; and (7) negligent infliction of emotional distress.

            Now, Plaintiff seeks leave to amend to file a third amended complaint (TAC).

Discussion

            On 6/30/2023, the Court sustained in part Defendant’s demurrer, based on a determination that Plaintiff had improperly added causes of action without first seeking leave to amend.

            Now, Plaintiff seeks leave to amend to add the stricken causes of action—breach of contract and two claims of construction defects—and to remove the causes of action for negligent infliction of emotional distress which the Court sustained the demurrer as to.

“This statutory provision giving the courts the power to permit amendments in furtherance of justice has received a very liberal interpretation by the courts of this state.” (Klopstock v. Superior Court (1941) Cal.2d 13, 19. The policy favoring leave to amend is so strong that it is an abuse of discretion to deny an amendment unless the adverse party can show meaningful prejudice, such as the running of the statute of limitations, trial delay, the loss of critical evidence, or added preparation costs.  (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.)

            Here, Plaintiff’s motion is an effort to conform with this Court’s demurrer ruling. Moreover, trial has not been set in this matter, and the case remains in the early stages. Defendant did not persuasively show any evidence of meaningful prejudice if leave to amend was granted. In opposition, Defendants argue that Plaintiff cannot maintain claims for construction defect and negligence, because the Right to Repair Act and Civil Code section 896 are the exclusive remedies. However, there is no dispute that this action concerns construction defects, and thus the superfluous cause of action here is the negligence claim.  However, Plaintiff’s previous complaint already included a claim for negligence As such, the sufficiency of the negligence claim is not properly before the Court, and the Court cannot deny leave to amend to add relevant claims because preexisting causes of action are inadequately pled. Rather, such a claim is properly raised through demurrer.    

            Based on the foregoing, Plaintiff’s motion to file an TAC is granted.

It is so ordered.

Dated:  August    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.