Judge: Teresa A. Beaudet, Case: 19STCV26077, Date: 2023-04-05 Tentative Ruling
Case Number: 19STCV26077 Hearing Date: April 5, 2023 Dept: 50
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SAVOY
COMMUNITY ASSOCIATION, Plaintiff, vs. PERENNIAL ENGINEERING & CONSTRUCTION, INC., et al., Defendants. |
Case No.: |
19STCV26077 |
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Hearing Date: |
April 5, 2023 |
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Hearing Time: |
10:00 a.m. |
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[TENTATIVE]
ORDER RE: MARK BEAMISH WATERPROOFING, INC.’S MOTION FOR LEAVE TO FILE FIRST AMENDED
CROSS-COMPLAINT |
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AND RELATED
CROSS-ACTIONS |
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Background
Plaintiff Savoy Community Association
(“Plaintiff”) filed this action on July 26, 2019 against Defendants Perennial
Engineering & Construction, Inc., dba DM Construction Services (“Perennial”), SBBC
Associates Inc. dba Stonemark Construction Management, and Angelus
Waterproofing & Restoration, Inc. (“Angelus”).
The Complaint asserts causes of action for (1)
breach of contract, (2) breach of express warranty, (3) breach of implied
warranty, (4) negligence, and (5) strict liability. Plaintiff is a nonprofit mutual
benefit corporation composed of owners of condominium living units located at
100 South Alameda Street, Los Angeles California (the “Property”). (Compl., ¶
1.) Plaintiff alleges that there are a number of deficiencies at the Property
due to renovations and repairs. (Compl., ¶ 22.) Among other allegations,
Plaintiff alleges that defendants negligently, carelessly, and in an
unworkmanlike manner performed work, labor, and/or services on the Property
such that the Property was reconstructed and repaired improperly, negligently,
carelessly, and in an unworkmanlike manner. (Compl., ¶ 51.)
On February 16, 2022, Plaintiff filed an
amendment to the Complaint naming Mark Beamish Waterproofing, Inc. (“Beamish”)
in place of “Doe 1.”
On December 4, 2019, Angelus
filed a Cross-Complaint against Moes 1-50. On February 5, 2021, Angelus filed
an amendment to the Cross-Complaint naming Beamish as Moe 3.
On April 1, 2020, Colony
Insurance Company (“Colony”) filed a Complaint in Intervention on behalf of
Perennial. On May 9, 2022, Colony filed a First Amended Complaint in
Intervention on behalf of Perennial.
On July 7, 2021, Beamish filed a
Cross-Complaint against Roes 1-50. Beamish’s Cross-Complaint asserts causes of
action for (1) equitable indemnity, (2) comparative contribution, (3)
comparative fault, and (4) declaratory relief.
Beamish now moves for an order granting leave to file a First
Amended Cross-Complaint. Plaintiff opposes.
Request for Judicial Notice
The Court grants Plaintiff’s request for judicial notice.
Discussion
Pursuant to
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, subd. (a).) The
motion must also state what allegations are proposed to be deleted or added, by
page, paragraph, and line number. (Ibid.) Finally, “[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.” (Cal. Rules of Court, rule 3.1324, subd.
(b), emphasis added.)
Beamish seeks to amend its Cross-Complaint to
add causes of action for breach of third party beneficiary contract and express
indemnity. (Exhibit 1 to the Declaration of Kayla P. Le; Le Decl., ¶ 3.) Beamish
also seeks to name Perennial, P’Rae’s General Contractors, Inc. dba DM Construction Services,
Inc., and David Solomos as Cross-Defendants in the First Amended
Cross-Complaint. (Le Decl., Ex. 1.) Beamish provides a copy of the proposed
First Amended Cross-Complaint, which contains redline edits to the operative
Cross-Complaint. (Ibid.)
Beamish submits the Declaration of its counsel
Kayla P. Le in support of the
motion. Ms. Le states that “[o]n or
about August 2022, [Beamish] first learned that Plaintiff now intends to seek
damages from [Beamish] associated solely with [Perennial’s] deficient
waterproofing work at the podium deck/courtyard, ponds, alleyways, planters,
and underground garage.” (Le Decl., ¶ 19.) Beamish also states that “[o]n November
21, 2022, Plaintiffs experts performed destructive testing of the substrate at
three (3) locations of the podium deck at the Property’s courtyard, which was
observed by MBW’s consultants and counsel.” (Le Decl., ¶ 24.)
Beamish also notes that on January 11, 2023,
the Court issued an order granting Colony’s motion for order determining good faith settlement.
As set forth in the January 11, 2023 Order, Plaintiff, Colony, Perennial, P’Raes General Contractors, Inc. dba DM Construction Services, DM
Construction Services, Inc., and David Solomos entered into a Settlement
Agreement and Release of Claims, under which Colony shall pay Plaintiff the sum
of $1,000,000.00. (Order at p. 2:10-13.)
On February 14, 2023, Plaintiff filed a request for dismissal of the Complaint
with prejudice as to Perennial. Dismissal was entered on the same date.
In the instant motion,
Beamish asserts that “[g]iven the recent development of Plaintiff’s settlement with
Intervenor, Plaintiff’s new allegations of improper shotblasting by
[Beamish] at the courtyard, and the results of the destructive testing on November
21, 2023 [sic], [Beamish] diligently sought a stipulation from all parties to
amend their cross-complaint without leave of court to assert claims for
express indemnity and breach of third party beneficiary contract against DM
Construction.” (Le Decl., ¶ 33.) Beamish asserts that it “did not move earlier
to amend its cross-complaint to name [Perennial] for express indemnity and
breach of third party beneficiary contract because [Beamish] only recently
learned of Plaintiff’s new assertion that Plaintiff seeks damages from
[Beamish] for [Perennial’s] faulty waterproofing work at the Property on the
theory [Beamish’s] sandblasting work was deficient.” (Le Decl., ¶ 34.)
Beamish also indicates that in June 2013,
Beamish entered into a written Bid Proposal with Perennial to furnish all
labor, materials and equipment to “shot blast approximately 18,000 sq. ft.
existing concrete in preparation for new waterproofing to be done by others.”
(Le Decl., ¶ 9.) Beamish asserts that it should “be given
fair opportunity to hold [Perennial] contractualy [sic] responsible for its negligence at the Project
based on the contractual language under Article 3 (Contractor), Section, 3.3.3…under
which [Perennial] should be liable to [Beamish] under a theory of express warranty and
breach of third party beneficiary contract.” (Le Decl., ¶ 36.)
In the opposition, Plaintiff first asserts
that Beamish’s proposed amendment is insufficient to state a cause of action
against Perennial. Specifically, Plaintiff asserts that “[Perennial], as a
settling tortfeasor, received a good faith settlement determination by the
Court regarding its settlement with [Plaintiff] and was dismissed from the
action. As such, Beamish’s causes of action for equitable indemnity,
comparative contribution, and comparative fault as against [Perennial] are
expressly prohibited by Code Civ. Proc. § 877.” (Opp’n at p. 3:22-26,
emphasis omitted.) Plaintiff also asserts that “Beamish is not a third-party
beneficiary to the express indemnity provision contained in the [Plaintiff]-[Perennial]
Contract,” such that “Beamish’s proposed amendment is insufficient as a matter
of law and Beamish should not be permitted leave to amend.” (Opp’n at pp. 4:2-3;
6:6-7.)
However, the Court notes
that the legal deficiency of the proposed amendment does not warrant denial of
leave to amend. (¿See Kittredge Sports Co. v. Superior
Court (1989) 213 Cal.App.3d
1045, 1048 [“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”]¿.)
Plaintiff also asserts
that Beamish’s motion is untimely. Plaintiff
cites to Melican v. Regents of University of
California (2007) 151 Cal.App.4th 168, 171-172, where the
plaintiffs “based their claims on the alleged mishandling of George Melican’s remains by the
Willed Body Program (WBP) operated by the University of California, Irvine (UCI).
Plaintiffs contend UCI breached its agreement to return Melican’s cremated remains…” In Melican,
“[a]t the summary judgment hearing, plaintiffs
dropped their claim that Melican had arranged for UCI to return his remains
to the family, and conceded Melican’s widow, who
made the WBP donation, did not request UCI to return her husband’s remains. At
the hearing, however, plaintiffs orally moved to amend their complaints to add
a new breach of contract claim alleging that UCI formed a new contract in
September 1999 when it agreed with Joseph to return his father’s remains to the
family.” ((Id. at p. 175.) The Court of Appeal found that the trial court
did not err in denying leave to amend. (Ibid. .)
The Court of Appeal noted that “plaintiffs were
aware of the facts underlying the purported contract between Joseph and UCI
from the time the agreement allegedly was formed. Consequently, this claim
should have been pleaded when Joseph was added as a party to the action in
January 2000. Yet, plaintiffs never sought to add the claim until they made
their oral request during the summary judgment hearing over five years later.
Plaintiffs proffer no explanation for this clearly unreasonable delay. It would
be patently unfair to allow plaintiffs to defeat UCI's summary judgment motion
by allowing them to present a ‘moving target’ unbounded by the pleadings.” ((Id.
at p. 176.)
Plaintiff asserts that here, “similar to the facts of Melican, Beamish knew the factual basis
for the proposed new cross-claims against
[Perennial] years ago. These claims (particularly breach of third party
beneficiary contract and express
indemnity) are based entirely on the [Plaintiff]-[Perennial] Contract for
repairs to the Project and on a
subcontract executed by Beamish. Thus, just as in Melican,
Beamish has unjustifiably delayed
in asserting contract-based claims of which they were aware years earlier.”
(Opp’n at p. 7:11-15.)
Beamish counters that it was initially only
named as a cross-defendant in Angelus’s Cross-Complaint on February 5, 2021;
and that it was only named as a defendant in Plaintiff’s Complaint on February
16, 2022. Beamish also asserts, as set forth above, that it first learned in August
2022 that “Plaintiff now intends to seek damages from [Beamish] associated
solely with [Perennial’s] deficient waterproofing work at the podium deck/courtyard,
ponds, alleyways, planters, and underground garage.” (Le Decl., ¶ 19.) Beamish
asserts that this new claim led
to additional destructive testing of podium deck in November 21, 2022 by
Plaintiff’s experts.
Plaintiff contends that the new allegations of
improper shotblasting by Beamish are not newly discovered, and that Beamish had
knowledge of Plaintiff’s existing claims regarding defective waterproofing at
the podium deck since the inception of the action in 2019. In support of this
assertion, Plaintiff’s counsel states that “Plaintiff has conducted joint
expert meetings, visual inspections, and destructive testing at the Project
over the course of 2019-2021. Plaintiff has previously produced its defect
list, scope and cost of repair, each of which identify improper installation of
the podium deck to Beamish.” (Swaney Decl., ¶ 4.) However, Plaintiff does not
state the date on which it purportedly indicated to Beamish that the
installation of the podium deck was allegedly improper, or the date on which it
first asserted that Beamish was responsible for defects relating to the podium
deck. As set forth above, on February 16, 2022, Plaintiff filed an amendment to
the Complaint naming Beamish
in place of “Doe 1.”
Lastly, Plaintiff asserts
that it will be prejudiced by the proposed amendments. Plaintiff notes that
trial is set for July 5, 2023. Plaintiff asserts that “Beamish’s motion will most certainly delay trial and increase the discovery burden as to all parties.”
(Opp’n at p. 6:17-18.) Beamish counters that “Plaintiff will suffer no prejudice with [Beamish’s] proposed
amendment because Trial is currently set for July 25, 2023, which should be enough
time for [Perennial] to appear and prepare for trial if [Beamish’s] Motion is granted.
Because [Perennial] has been involved in this case through Intervenor Colony from
the case’s inception, no further discovery is required other than expert
depositions, which still has not commenced to date.” (Reply at p. 4:15-19.)
Conclusion
Based on the foregoing,
the Court grants Beamish’s motion for leave to file a First Amended
Cross-Complaint. The Court orders Beamish to file and serve the First Amended
Cross-Complaint within 3 days of the date of this order.
Beamish
is ordered to give notice of this order.
DATED:
Hon.
Teresa A. Beaudet
Judge,
Los Angeles Superior Court