Judge Lynette Gridiron Winston, Case Number: 23PSCV00714, Date: 2024-03-07 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 23PSCV00714, Date: 2024-03-07 Tentative Ruling

CASE NAME: Simply Crystal Clean, LLC v. Pinhero Construction, Inc., et al.

The Court GRANTS the amended motion for leave to file a First Amended Complaint. Plaintiff must file and serve the proposed First Amended Complaint within five days of the Court’s order.

Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order.

This is a breach of contract action. On March 10, 2023, plaintiff Simply Crystal Clean, LLC (Plaintiff) filed this action against defendants Pinhero Construction, Inc. (Pinhero), Azusa Pacific University (APU) (collectively, Defendants), and Does 1 through 50, alleging causes of action for breach of contract and common counts.

On February 6, 2024, Plaintiff filed an amended motion for leave to file a First Amended Complaint.[1] The motion is unopposed.

Code of Civil Procedure section 473, subdivision (a)(1) provides, in relevant part: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. 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.” (Code Civ. Proc., § 473, subd. (a)(1).)

“This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047.) Under Rule 3.1324, subdivision (a) of the California Rules of Court, a motion to amend a pleading shall (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. (Cal. Rules of Court, rule 3.1324, subd. (a).)

Under Rule 3.1324, subdivision (b) of the California Rules of Court, 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. (Cal. Rules of Court, rule 3.1324, subd. (b).)

Plaintiff seeks leave to file a First Amended Complaint to add a request for attorney’s fees. Plaintiff’s counsel contends that he was unaware of any contract containing an attorney’s fees provision. (Plummer Decl., ¶ 4.) Plaintiff’s counsel also contends he recently learned this information at a mediation on January 17, 2024. (Plummer Decl., ¶ 5.) Plaintiff’s counsel further indicates that he attempted to obtain a stipulation to file a First Amended Complaint to add the request for attorney’s fees, but Defendants did not respond. (Plummer Decl., ¶ 2, Ex. A.)

The Court finds Plaintiff’s motion substantially complies with the requirements for seeking leave to amend. Plaintiff’s motion includes a copy of the proposed First Amended Complaint with the particular allegations to be added, per Rule 3.1324, subdivision (a), of the California Rules of Court. (See Plummer Decl., Ex. B; Cal. Rules of Court, rule 3.1324, subd. (a).) Plaintiff’s motion also contains a separate declaration indicating the effect of the proposed amendment would be to add a request for attorney’s fees, and that a contract providing for the recovery of attorney’s fees here was only recently discovered, which also explains why the request for amendment was not made earlier. (See Plummer Decl., ¶¶ 2, 4-5, Ex., A.) The Court further construes Defendants’ lack of opposition to this motion as a tacit admission that the motion is meritorious. (Holden v. City of San Diego (2019) 43 Cal.App.5th 404, 418; C. Opposing the Motion—and Rebutting the Opposition, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-C, ¶ 9:105.10.)

Based on the foregoing, the Court GRANTS Plaintiff’s amended motion for leave to file a First Amended Complaint.

The Court GRANTS the amended motion for leave to file a First Amended Complaint. Plaintiff must file and serve the proposed First Amended Complaint within five days of the Court’s order.

Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order.

[1] The Court could not find a prior motion for leave to file a First Amended Complaint, so it is unclear why Plaintiff labeled this motion as an amended motion.