Judge: Steven A. Ellis, Case: 22STCV20803, Date: 2024-09-25 Tentative Ruling
Case Number: 22STCV20803 Hearing Date: September 25, 2024 Dept: 29
Portillo v. 1400 Fig LLC
22STCV20803
Motion of Defendant Fassberg Contracting Corporation for
Leave to File First Amended Cross-Complaint
Background
On June 27, 2022, Claudia Rodriguez Portillo
(“Plaintiff”) filed a complaint against 1400 Fig LLC (“Fig”), Sunset Park
Construction, Inc. (“Sunset”), Fassberg Construction Company (“Fassberg Construction”),
and Does 1 through 20, asserting causes of action for premises liability and
general negligence arising out of an incident on March 17, 2021, in which
Plaintiff alleges that she fell from a scaffold adjacent to an open hole
located at 1400 South Figueroa Street and was injured.
Sunset filed an answer on August 15, 2022, and an amended
answer on September 8, 2022.
On September 14, 2022, Fig filed an answer, as well as a
cross-complaint against Fassberg Construction, Sunset, and Hoes 1 through 20.
On September 20, 2022, Plaintiff amended the complaint to
name Fassberg Contracting Corporation (“Fassberg Contracting”) as Doe 1.
On November 10, 2022, Sunset filed an answer to Fig’s cross-complaint.
On March 20, 2023, Fassberg Construction and Fassberg Contracting
filed an answer to the complaint. On the
same day, Fassberg Contracting filed a cross-complaint against Fig, Sunset, and
Moes 1 through 20.
On April 7, 2023, Fig filed an answer to Fassberg
Contracting’s cross-complaint. On April
21, 2023, Sunset filed an answer to Fassberg Contracting’s cross-complaint.
On August 2, 2023, Plaintiff amended the complaint to
name Ben Castro Masonry, Inc. as Doe 2 and BCM Construction Company, Inc. as
Doe 3.
On December 6, 2023, Fassberg Contracting amended its
cross-complaint to name Ben Castro Masonry, Inc. as Moe 1.
On March 13, 2024, Ben Castro Masonry, Inc filed an
answer to the complaint.
On August 27, 2024, Fassberg Contracting filed this
motion for leave to file the first amended cross-complaint.
No opposition has been filed.
Legal Standard
Code of Civil Procedure section 472,
subdivision (a), provides “[a] party may amend its pleading once without leave
of the court at any time before the answer, demurrer, or motion to strike is
filed, or after a demurrer or motion to strike is filed but before the demurrer
or motion to strike is heard if the amended pleading is filed and served no
later than the date for filing an opposition to the demurrer or motion to
strike.”
Code of Civil Procedure section 473,
subdivision (a)(1), provides, in relevant part:
“The court may, in furtherance of justice, and on any terms as may be
proper, allow a party to amend any pleading or proceeding by adding or striking
out the name of any party, or by correcting a mistake in the name of a party,
or a mistake in any other respect; and may, upon like terms, enlarge the time
for answer or demurrer. The court may
likewise, in its discretion, after notice to the adverse party, allow, upon any
terms as may be just, an amendment to any pleading or proceeding in other
particulars; and may upon like terms allow an answer to be made after the time
limited by this code.”
“This discretion should be exercised
liberally in favor of amendments, for judicial policy favors resolution of all
disputed matters in the same lawsuit.” (Kittredge
Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047.) Ordinarily, the court will not consider the
validity of the proposed amended pleading in ruling on a motion for leave since
grounds for a demurrer or motion to strike are premature. The court, however, does have discretion to
deny leave to amend where a proposed amendment fails to state a valid cause of
action as a matter of law and the defect cannot be cured by further
amendment. (See California Casualty
General Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 281,
overruled on other grounds by Kransco v. American Empire Surplus Lines Ins.
Co. (2000) 23 Cal.4th 390.)
Under California Rules of Court, rule
3.1324(a), a motion to amend a pleading shall (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.
Under Rule 3.1324(b), 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.
Even if a good amendment is proposed in
proper form, a long, unwarranted and unexcused delay in presenting it may be a
good reason for denial. In most cases,
the factors for timeliness are: (1) lack of diligence in discovering the facts
or in offering the amendment after knowledge of them; and (2) the effect of the
delay on the adverse party. If the party
seeking the amendment has been dilatory, and the delay has prejudiced the
opposing party, the judge has discretion to deny leave to amend. (Hirsa v. Superior Court (1981) 118
Cal.App.3d 486, 490.) Prejudice exists
where the amendment would require delaying the trial, resulting in loss of critical
evidence, or added costs of preparation such as an increased burden of
discovery. (Magpali v. Farmers Group,
Inc. (1996) 48 Cal.App.4th 471, 486-488.)
Discussion
Fassberg Contracting seeks leave to file an
amended cross-complaint. In its existing
cross-complaint, Fassberg Contracting asserts causes of action for Indemnity,
Contribution and Apportionment, and Declaratory Relief, but, according to
counsel, Fassberg Contracting has discovered facts giving rise to causes of
action for Express Indemnity and Breach of Contract against Sunset and Ben
Castro Masonry, Inc. (Grad Decl., ¶¶ 3-4.)
Fassberg Contracting’s counsel states that
multiple tender of defense letters have been sent to Sunset and Ben Castro
Masonry, Inc.; Sunset sent a letter of declination and Ben Castro Masonry, Inc.
did not respond. (Id., ¶¶ 6-7.)
The proposed First Amended Cross-Complaint is
attached as Exhibit E.
The Court finds that Fassberg Contracting has
met the applicable procedural requirements and has shown good cause for leave
to file the First Amended Cross-Complaint.
Therefore, the motion is granted.
Conclusion
The Court GRANTS Fassberg
Contracting’s motion for leave to file the First Amended Cross-Complaint.
The
Court GRANTS Fassberg Contracting LEAVE to file the First Amended
Cross-Complaint attached to the moving papers within 10 days of the hearing on
this motion.
Moving
Party to give notice.