Judge: Kerry Bensinger, Case: 21STCV23784, Date: 2023-12-12 Tentative Ruling

Case Number: 21STCV23784    Hearing Date: December 12, 2023    Dept: 31

Tentative Ruling

Judge Kerry Bensinger, Department 31

HEARING DATE:      December 12, 2023                                     TRIAL DATE:  Not set

CASE:                                GH Palmer, Inc., et al. v. Aquatherm, L.P., et al.

CASE NO.:                 21STCV23784

MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT

MOVING PARTY:               Plaintiffs GH Palmer, Inc., et al.

RESPONDING PARTY:     No opposition

I.          INTRODUCTION

On June 25, 2021, Plaintiffs, GH Palmer, Inc., Palmer/Flower Street Properties, and GHP Management Corporation, initiated this action against Defendants, Aquatherm, L.P., AENA NA, L.C., and Aquatherm GMBH, for (1) Breach of Express Warranty, (2) Strict Products Liability – Manufacturing Defect, and (3) Strict Products Liability – Design Defect.  The Complaint alleges that Aquatherm Green Piping leaked.

On August 25, 2023, Plaintiffs filed this motion for leave to file the First Amended Complaint. 

On December 5, 2023, Plaintiffs filed a Notice of Non-Opposition to the motion.

II.        LEGAL STANDARD 

            The court may, in its discretion and after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading, including adding or striking out the name of any party, or correcting a mistake in the name of a party, or a mistake in any other respect.¿ (Code Civ. Proc., § 473, subd. (a)(1).)¿ “Public policy dictates that leave to amend be liberally granted.”¿ (Centex Homes v. St. Paul Fire & Marine Ins. Co. (2015) 237 Cal.App.4th 23, 32.)¿ “Although courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial . . . this policy should be applied only ‘where no prejudice is shown to the adverse party.’¿ [Citation].¿ A different result is indicated ‘where inexcusable delay and probable prejudice to the opposing party’ is shown.¿ [Citation.]” ¿(Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487.)¿ 

            A motion to amend a pleading must include a copy of the proposed amendment or amended pleading which must be serially numbered to differentiate it from previous pleadings or amendments and must state what allegations in the previous pleading are proposed to be deleted or added, if any, and where, by page, paragraph, and line number, the allegations are located. (Cal. Rules of Court, Rule 3.1324, subd. (a).)¿ The motion shall also be accompanied by a declaration attesting to the effect of the amendment, why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and why the request for amendment was not made earlier.¿ (Cal. Rules of Court, Rule 1.324, subd. (b).)¿ 

            In ruling on a motion for leave to amend the complaint, the court does not consider the merits of the proposed amendment, because “the preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings.”¿ (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.)¿ While the court may deny leave to amend where the proposed amendment is insufficient to state a valid cause of action or defense, such denial is most appropriate where the insufficiency cannot be cured by further amendment—i.e., where the statute of limitations has expired or the insufficiency is established by controlling caselaw. (California casualty Gen. Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 280-281, disapproved on other grounds in Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390.)¿ 

III.       APPLICATION

Plaintiffs seek leave to file the proposed first amended complaint to add the following: (1) new allegations regarding leaks from Aquatherm Green Piping in Plaintiffs’ other properties that were discovered only after the Complaint was filed; (2) new causes of action against all named Defendants for Breach of Express Warranty, Manufacturing Defect, Design Defect, and Failure to Warn; and 3) new Plaintiffs Palmer Temple Street Properties LLC, 918 Broadway Associates LLC, and LR 9th & Broadway LLC.

The motion complies with the requirements of California Rules of Court, rule 3.1342, subdivision (a).  Further, as the motion is unopposed, the Court finds no prejudice will result if leave is granted to file the amended complaint.

IV.       CONCLUSION

            The unopposed motion for leave to file the First Amended Complaint is GRANTED.  The First Amended Complaint is deemed filed and served on this date.  Plaintiffs are directed to separately file the First Amended Complaint.

Moving party to give notice. 

Dated:   December 12, 2023