Judge: Peter A. Hernandez, Case: 19PSCV00687, Date: 2022-08-10 Tentative Ruling
Case Number: 19PSCV00687 Hearing Date: August 10, 2022 Dept: O
Plaintiff Meritage Homes of California, Inc.’s unopposed Motion
for Leave to File First Amended Complaint is GRANTED. The proposed FAC is
deemed filed and served as of the hearing date.
Background
Case No. 18PSCV00026
Plaintiff Meritage Homes of California, Inc. (“Meritage”) alleges as follows: Michael Barker International Inc. fka RBF Consulting (“MBI”) failed to properly perform engineering services in connection with the development of the Creekside residential subdivision in La Verne, California (“Creekside”).
On October 12, 2018, Plaintiff filed a First Amended Complaint, asserting causes of action against MBI and Does 1-200 for:
1.
Breach
of Contract
2.
Breach
of Implied Covenant of Good Faith and Fair Dealing
3.
Gross
Negligence
On November 13, 2018, MBI filed a cross-complaint, asserting causes of action against Roes 1-100 for:
1.
Equitable
Indemnity
2.
Comparative
Apportionment of Fault
3.
Declaratory
Relief
On April 25, 2022, the court related this instant case to Case No. 19PSCV00687; this instant case was deemed to be the lead case.
A Trial Setting Conference is set for February 7, 2023.
Case No. 19PSCV00687
Meritage alleges as follows: Boudreau Pipeline Corporation (“Boudreau”) constructed and installed a sewer lift station and associated improvements (“the System”) in connection with and to service Creekside. The System’s pumps were manufactured with undersized impeller blades, which caused issues with the flow and pressure. Boudreau failed to promptly remedy the operational and performance issues with the System, which resulted in the City of La Verne (“City”) imposing a sales and building moratorium and ultimately resulted in the City’s revocation of permits.
On July 30, 2019, Meritage filed a complaint, asserting causes of action against Boudreau and Does 1-300 for:
1.
Breach
of Contract
2.
Express
Indemnity
3.
Negligence
4.
Declaratory
Relief Re: Duty to Indemnify
5.
Declaratory
Relief Re: Duty to Defend
6.
Declaratory
Relief Re: Duty to Defend
7.
Breach
of Contract—Third Party Beneficiary
8.
Strict
Products Liability
9.
Negligence
10.
Breach
of Contract
11.
Breach
of Implied Covenants of Good Faith and Fair Dealing
12.
Express
Indemnity
13.
Declaratory
Relief Re: Duty to Indemnify
14.
Declaratory
Relief Re: Duty to Defend
15.
Declaratory
Relief Re: Duty to Defend
On October 22, 2019, Boudreau filed a cross-complaint, asserting causes of action against John Lisee Pumps (“JLP”), Meritage and Roes 1-125 for:
1.
Express Contractual
Indemnity
2.
Implied
Indemnity
3.
Total
Equitable Indemnity
4.
Contribution
5.
Declaratory
Relief: Duty to Indemnify
6.
Declaratory
Relief: Duty to Defend
7.
Breach
of Contract
8.
Breach
of Express Warranties
9.
Breach
of Implied Warranties
10.
Negligence
11.
Quantum
Meruit
On December 9, 2019, Boudreau dismissed its 1st-10th causes of action against Meritage, with prejudice.
On December 10, 2019, JLP filed a cross-complaint, asserting causes of action against Moes 1-20 for:
1.
Indemnity
2.
Contribution
3.
Apportionment
4.
Declaratory
Relief
On February 24, 2020, Boudreau filed an “Amendment to [Cross-]Complaint,” wherein Pentair was substituted in lieu of Roe 101. On April 27, 2020, Meritage filed an “Amendment to Complaint,” wherein MBI was named in lieu of Doe 1.
On June 23, 2020, MBI filed a cross-complaint, asserting causes of action against Roes 1-100 for:
1.
Equitable
Indemnity
2.
Comparative
Apportionment of Fault
3.
Declaratory
Relief
On February 17, 2021, MBI filed an “Amendment to [Cross-]Complaint,” wherein Boudreau was named in lieu of Roe 1, JLP was named in lieu of Roe 2 and Pentair Flow Technologies, LLC was named in lieu of Roe 3.
On October 22, 2021, Meritage filed an “Amendment to Complaint,” wherein JLP was named in lieu of Doe 151.
On February 10, 2021, Boudreau filed an “Amendment to [Cross-]Complaint,” wherein MBI was named in lieu of Roe 76.
On April 25, 2022, the court related this instant case to Case No. 18PSCV00026; Case No. 18PSCV00026 was deemed to be the lead case.
The Final Status Conference is set for February 7, 2023. Trial is set for February 21, 2023.
Legal Standard
“The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading…” (Code Civ. Proc., § 473, subd. (a)(1); and see § 576 [“Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order”].)
“[T]he trial court has wide discretion in allowing the amendment of any pleading.” (Bedolla v. Logan & Frazer (1975) 52 Cal.App.3d 118, 135.) “[I]t is irrelevant that new legal theories are introduced as long as the proposed amendments relate to the same general set of facts.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048 [quotation marks and citation omitted].) “[E]ven if the proposed legal theory is a novel one, 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.” (Id. [quotation marks and citation omitted].) With that said, “the failure of a proposed amendment to state facts sufficient to constitute a cause of action or defense may support an order denying a motion to amend.” (California Casualty Gen. Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 280, disapproved of on other grounds in Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390)
Courts must apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial, when no prejudice is shown to the adverse party. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) However, “even if a good amendment is proposed in proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial . . . denial may rest upon the element of lack of diligence in offering the amendment after knowledge of the facts, or the effect of the delay on the adverse party.” (Roemer v. Retail Credit Co. (1975) 44 Cal.App.3d 926, 940.)
Also, “[a] motion to amend a pleading before trial must: (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.” (California Rules of Court (“CRC”) Rule 3.1324(a).) Additionally, “[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.” (CRC Rule 3.1324, subd. (b).)
Discussion
Plaintiff moves the court for leave permitting Plaintiff to file a First Amended Complaint (“FAC”).
Plaintiff seeks to add claims for fraud and negligent misrepresentation against Boudreau and JLP. The motion reflects adequate compliance with CRC Rule 3.1324, subsection (a). The declaration of Plaintiff’s counsel Drew C. Wagner-Weir (“Wagner-Weir”) reflects technical non-compliance with subsection (b); however, the court determines that this information is sufficiently set forth in the memorandum of points and authorities and excerpts from Douglas
Martin’s December 7, 2021 deposition attached as Exhibit B to Wagner-Weir’s declaration. The court further notes that the motion is unopposed.
The motion is granted. The proposed FAC is deemed filed and served as of the hearing date.