Judge: Peter A. Hernandez, Case: 23STCV18469, Date: 2025-04-30 Tentative Ruling
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Case Number: 23STCV18469 Hearing Date: April 30, 2025 Dept: 34
Plaintiffs Fountain Topco LLC and 4 Over LLC’s Motion
for Leave to File a Third Amended Complaint is GRANTED.
Background
On July 25, 2024, Plaintiffs Fountain Topco LLC and 4
Over LLC (“Plaintiffs”) filed a complaint against Defendants ACE American
Insurance Company and USI Insurance Services, LLC (“Defendants”) arising from
Plaintiffs’ insurance coverage with Defendants alleging causes of action for:
1.
Breach of Contract;
2.
Tortious Breach of The Implied
Covenant of Good Faith and Fair Dealing;
3.
Negligence; and
4.
Breach Of Fiduciary Duty.
On September
17, 2024, Plaintiffs filed a First Amended Complaint (“FAC”) against Defendants
alleging causes of action for:
1.
Breach
of Contract;
2.
Tortious Breach of The Implied
Covenant of Good Faith and Fair Dealing;
3.
Negligence; and
4.
Fraudulent Concealment.
On October
23, 2024, Defendant ACE American Insurance Company filed an answer to Plaintiffs’
FAC.
On January 22,
2025, the court sustained Defendant USI Insurance Services, LLC’s Demurrer to
Plaintiffs’ fourth cause of action in the FAC with leave to amend.
On February
11, 2025, Plaintiffs filed a Second Amended Complaint (“SAC”).
On March 27,
2025, Plaintiffs filed this Motion to File a third amended complaint. On April
17, 2025, Defendant USI Insurance Services, LLC filed an opposition. On April
23, 2025, Plaintiffs filed a reply.
Legal Standard
Under Code of Civ. Proc. section 473,
subd. (a)(1), “[t]he court may, in furtherance of justice, and on any terms as
may be proper, allow a party to amend any pleading.”¿Amendment may be allowed at any time
before or after commencement of trial. (Code Civ. Proc., § 576.) “[T]he court’s
discretion will usually be exercised liberally to permit amendment of the
pleadings. The policy favoring amendment is so strong that it is a rare case in
which denial of leave to amend can be justified.” (Howard v. County of San
Diego (2010) 184 Cal.App.4th 1422, 1428 (internal citations omitted).) “If
the motion to amend is timely made and the granting of the motion will not
prejudice the opposing party, it is error to refuse permission to amend . . .”¿ (Morgan v. Sup. Ct. (1959) 172
Cal.App.2d 527, 530.) Prejudice includes “delay in trial, loss of critical
evidence, or added costs of preparation.” (Solit v. Tokai Bank, Ltd. New
York Branch (1999) 68 Cal.App.4th 1435, 1448.)¿¿¿¿
¿¿
A motion to amend a pleading before trial
must include a copy of the proposed amendment or amended pleading, which must
be serially numbered to differentiate it from previous pleadings or amendments.
(Cal. Rules of Court, rule 3.1324(a).) The motion must also state what
allegations are proposed to be deleted or added, by page, paragraph, and line
number.¿(Cal. Rules of Court, rule 3.1324(a).) Finally, a separate supporting
declaration specifying the effect of the amendment, why the amendment is
necessary and proper, when the facts giving rise to the amended allegations
were discovered, and the reason the request for amendment was not made earlier
must also accompany the motion. (Cal. Rules of Court, rule 3.1324(b).)¿¿¿
Discussion
Plaintiffs
seeks leave to file a third amended complaint to allege two additional causes
of action against Defendant USI
Insurance Services, LLC (“USI”) for negligent misrepresentation and fraudulent
misrepresentation while also adding additional allegations to support
Plaintiffs’ cause of action for fraudulent concealment. (Motion, at p. 4.) Plaintiffs
note that leave to amend is liberally granted, that the amendments would not
cause prejudice to Defendants as no trial date has been set, and that amendment
would be in the interest of justice and judicial efficiency. (Id., at pp.
8-10.)
In opposition, USI argues that this
would be Plaintiffs’ fourth attempt to plead a claim warranting punitive damages.
(Opp., at p. 2.) USI also argues that Plaintiffs have failed to comply with the
mandatory requirements of Rule 3.1324 as Plaintiffs do not identify the edits
to be made, do not specify when the facts giving rise to the amended
allegations were discovered, and fail to explain why amendment was not made earlier.
(Id., at pp. 3-6.)
Plaintiffs comply with the requirements
of Rule 3.1324 by providing a redlined copy of the third amended
complaint, identifying the changes to be made, and a supporting declaration
identifying why the amendment is necessary. (Appendix of Proposed Changes, at
pp. 11-15; Schneider Decl., ¶¶ 7-10, Exhs. A-B.) The court also finds that any prejudice
to Defendants would be minimal as no trial date has been set. Thus, Defendants
will have ample time to contest the amended pleading.
Accordingly, Plaintiffs’ motion is
granted.
Conclusion
Plaintiffs Fountain Topco LLC and 4
Over LLC’s Motion for Leave to File a Third Amended Complaint is GRANTED.