Judge: Maurice A. Leiter, Case: 20GDCV00072, Date: 2022-09-22 Tentative Ruling

Case Number: 20GDCV00072    Hearing Date: September 22, 2022    Dept: 54

Hearing Date: September 22, 2022

Department 54, Judge Maurice A. Leiter

Motion for Leave to Amend

Moving Party: Cross-Complainants/Defendants Cal Garden, LLC and Ming Gu

Responding Party: Cross-Defendant/Plaintiff Queens Land Builder, Inc.

T/R:    CROSS-COMPLAINANTS’ MOTION FOR LEAVE TO AMEND IS GRANTED.

            CROSS-COMPLAINANTS to notice. 

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

            The Court considers the moving papers, opposition, and reply.

BACKGROUND

            This is a construction defect case arising out of the construction of a condominium complex and its subterranean garage. The owners of property adjoining the complex claim that the construction caused substantial subsidence and settlement issues on its property. The action involves several contractors/sub-contractors, complaints, and cross-complaints.

ANALYSIS

The Court may allow, in furtherance of justice, and “upon any terms as may be just, an amendment to any pleading or proceeding in other particulars….”  (CCP § 473(a)(1).)  A motion to amend a pleading before trial must be accompanied by a separate declaration that specifies (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.  (CRC Rule 3.1324(b).)

It is not an abuse of discretion of the court to grant the motion unless there is a “showing that actual unfairness or obvious prejudice has resulted from the allowance of such an amendment”.  (Posz v. Burchell (1962) 209 Cal.App.2d 324, 334.)  “Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading.”  (Ibid.)  Absent a showing of prejudice, delay alone is insufficient grounds for denial.  (See Higgins v. Del Faro (1981) 123 Cal. App. 3d 558, 564–65.)

Cross-Complainants move for leave to file a first amended cross-complaint to conform with a recent settlement agreement in the related cases. Cross-Complainants seek to remove the tort causes of action, leaving only the contract claims. Cross-Complainants comply with CRC Rule 3.1324(b).

In opposition, Cross-Defendant asserts the FACC does not comply with the settlement agreement and will require a trial continuance. In reply, Cross-Complainants represent that counsel for all parties participated in the drafting of the FACC and negotiation of the settlement. The proposed FACC is explicitly referenced in and attached to the settlement agreement executed by Cross-Defendant.

The Court finds that the amendment in the interests of justice. Cross-Complainants’ motion is GRANTED.