Judge Mark E. Windham, Case Number: 21STLC07410, Date: 2024-03-18 Tentative Ruling

Judge: Mark E. Windham, Case: 21STLC07410, Date: 2024-03-18 Tentative Ruling

Case Number: 21STLC07410 Hearing Date: March 18, 2024 Dept: 26

Sung v. Melgerai, et al.

MOTION FOR LEAVE TO AMEND PLEADING

(CCP §§ 473(a), 576; CRC Rule 3.1324)

TENTATIVE RULING:

Defendants/Cross-Complainants Toryalai Melgerai and Maricela Saucedo’s Motion for Leave to File First Amended Cross-Complaint is GRANTED. THE FIRST AMENDED CROSS-COMPLAINT IS TO BE FILED AND SERVED WITHIN 20 DAYS OF THIS ORDER.

ANALYSIS:

Plaintiff Oe-Jung Sung dba WS Construction Company filed the instant action for breach of contract and common counts against Defendants Toryalai Melgerai and Maricela Saucedo on October 12, 2021. Defendants Toryalai Melgerai and Maricela Saucedo (“Cross-Complainants”) filed an answer and Cross-Complaint on January 14, 2022 and January 19, 2022, respectively. The Cross-Complaint alleged causes of action for breach of contract, declaratory relief, and unfair business practices against Plaintiff Oe-Jung Sung dba WS Construction Company (“Cross-Defendant”).

Cross-Complainants filed the instant Motion for Leave to File First Amended Cross-Complaint on January 16, 2024. To date, no opposition has been filed regarding the instant Motion for Leave to File First Amended Cross-Complaint.

Discussion

Cross-Complainants move for leave to file a First Amended Complaint in order to add a cause of action for fraud and misrepresentation. (Notice, p. 2:1-3.) The Motion is brought pursuant to Code of Civil Procedure section 473, subdivision (a), which permits leave to amend upon the Court’s order. A motion for leave to amend a pleading must also comply with the procedural requirements of California Rules of Court, Rule 3.1324, which requires a supporting declaration to set forth explicitly what allegations are to be added and where, and explicitly stating what new evidence was discovered warranting the amendment and why the amendment was not made earlier. The motion must also include (1) a copy of the proposed and numbered amendment, (2) specifications by reference to pages and lines the allegations that would be deleted and added, and (3) a declaration specifying the effect, necessity and propriety of the amendments, date of discovery and reasons for delay. (Cal. Rules of Court, Rule 3.1324, subds. (a), (b).)

A copy of the proposed First Amended Cross-Complaint is attached to the supporting declaration and the Motion sets forth what changes are to be made and where. (Motion, Saucedo, Exh. A.) The declaration explains that in November 2023, Cross-Complainant Melgerai conducted exploratory digging at the base of the sheer wall installed by Cross-Defendant and discovered it had been installed without any foundation. (Motion, Melgerai Decl., ¶¶21, 23.) Cross-Complainant Melgerai contends that a foundation is necessary to the integrity of weight-supporting shear walls and to meet the specifications in seismic retrofit codes. (Id. at ¶22.) Cross-Defendant had represented that the shear wall provided the necessary structural support and integrity required by the seismic retrofit and building codes. (Id. at ¶24.) Cross-Complainant Melgerai believes Cross-Defendant’s representations were false. (Id. at ¶25.)

The policy favoring amendment and resolving all matters in the same dispute is “so strong that it is a rare case in which denial of leave to amend can be justified. . . .” (Magpali v. Farmers Group (1996) 48 Cal.App.4th 471, 487.) However, “[a] different result is indicated ‘where inexcusable delay and probable prejudice to the opposing party’ is shown. [Citation].” (Ibid.) Here, the Court finds Cross-Complainants have demonstrated the basis for seeking leave to amend based on the new information obtained in November 2023 and that Cross-Defendant, who has not opposed the Motion, will not be prejudiced.

Conclusion

Moving party to give notice.