Judge: Mark H. Epstein, Case: 21SMCV01459, Date: 2023-11-09 Tentative Ruling

If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must contact the opposing party and all other parties who have appeared in the action and confirm that each will submit on the tentative ruling. Please call the court no later than 4:30 p.m. on the court day before the hearing, leave a message with the court clerk at (310) 260-3629 advising her that all parties will submit on the tentative ruling and waive hearing, and finally, serve notice of the Court's ruling on all parties entitled to receive service. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing.

Case Number: 21SMCV01459    Hearing Date: January 19, 2024    Dept: I

The court is unhappy about this.  HVC and Cornejo seek to amend their cross-complaint to name the architect (ROE 6) and the contractor who completed the work after HCV was terminated (ROE 7).  (HVC also sought to add another party—ROE 8—but has since withdrawn that request.)  Plaintiffs oppose, claiming cross-complainants were not diligent and that there will be prejudice. 

According to cross-complainants, they could not sue the architect until after the site inspection.  They claim that to get a certificate of merit (as is required to sue the architect) they needed to have both the actual plans (which they claim that they did not get until relatively late) and also inspect the site, which plaintiff would not allow until about a month before the motion was filed.  It is and was proper to get the certificate of merit before suing the architect and the court is not prepared to say that the certificate could have been obtained without the site inspection.  But that said, this argument was made for the first time in reply and is not supported by the expert’s declaration but rather is supported only by hearsay from counsel.  The court will inquire as to this and will allow cross-complainants to provide a short declaration from the expert no later than Monday at 4:00 pm confirming unambiguously that no certificate of merit could be given until after the physical inspection.  The remainder of this tentative depends on that being filed.  If it is not filed, then the claim is unsupported and the court would be inclined to DENY the motion.

Assuming that the declaration is filed, then even if HCV was aware of the basic alleged flaw, they could not sue the architect until after the site inspection.  Cross-complainants sought to do the inspection in February 2023, but plaintiffs delayed the inspection until November.  The court is therefore inclined to GRANT the motion as to the architect if the declaration is timely filed.  If it turns out that the plans were faulty and HCV built according to the plans, it could be that the jury finds joint liability: the architect for writing faulty plans and HCV for not figuring it out and building it anyway.  Of course, there are other permutations, but the court cannot say that joint liability is not among them.  Because if there is joint liability there could be a claim for equitable indemnity or contribution, it would make sense to try the case at one time.  Doing so would insure that the architect is bound by the jury’s verdict and that there are no inconsistent judgments.  If the cases are tried separately, the architect—who is not now a party at all—would not be bound by the jury’s determination.  As a result, if there were joint and several liability HCV would have to bring a separate action against the architect and prove the architect’s fault to the other jury, who might see it differently.

The situation is different as to ROE 7.  HCV’s theory is that this entity was brought in after HCV was terminated and the problems about which the Balters complain is really the new contractor’s fault, not HCV’s fault.  The court is more troubled by this.  Of course, the new contractor owed no duty to HCV.  Thus, HCV is not suing, and cannot sue, for any breach of contract or negligence.  Rather, the only theory would be that HCV will assert equitable indemnity or contribution if the fault lies with the new contractor.  But there is a problem.  If AMF (the new contractor) did faulty work, it is hard to see how the liability would be joint.  Rather, it would be several.  HCV is liable for the faulty work it did (if any) and AMF is liable for the faulty work it did (if any).  But neither is liable for the other side’s faulty work.  As such, HCV is fully entitled to argue to the jury that AMF is the party that really messed up the work, and if the jury believes it, HCV’s liability will be less whether or not AMF is a party.  Absent a finding of joint liability, there is no cause of action for equitable indemnity or contribution, and thus no reason to add the party.  To find equitable indemnity or contribution, the jury must find that AMF and HCV are joint tortfeasors, not just two entities who did work at the same site.  (Prince v. Pacific Gas & Elec. Co. (2009) 45 Cal.4th 1151; Morgan Creek Residential v. Kemp (2007) 153 Cal.App.4th 675.)  The court will inquire further about this, and it could be that HCV is able to explain why AMF is in the same position as the architect.

For those reasons, the court will GRANT the motion for leave to amend as to the architect (conditioned upon receipt of the declaration) but DENY the motion as to AMF.  That is without prejudice to the right of a newly-named defendant to demur to the cross-complaint.  For now, the current trial date will hold.  If the architect needs to do discovery, it ought to be as expedited as possible.  The hope is that the vast majority of the discovery (or at least document production) has already been done.