Judge: Thomas D. Long, Case: 22STCV05295, Date: 2023-03-23 Tentative Ruling

Case Number: 22STCV05295    Hearing Date: March 23, 2023    Dept: 48

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On August 23, 2022, Plaintiff filed a third amended complaint (“TAC”) against Defendants Eun Hee Song, JNH Roofing, Inc., Sean Soon Wook Lee, Jay Hahm, Restoration Unlimited Group, Inc., State National Insurance Company, Inc. (“State National”), RK All Insurance Services (“RK”), and Rian Kang.

On December 1, 2022, the Court sustained in part State National’s demurrer and granted its motion to strike the eighth cause of action for negligent misrepresentation.

On February 21, 2023, Plaintiff filed a motion for leave to file a fourth amended complaint (“4AC”).

The Court may, in its discretion and after notice to the adverse party, allow an amendment to any pleading.  (Code Civ. Proc., § 473, subd. (a)(1).)  A motion to amend a pleading must include a copy of the proposed amendment or amended pleading which must be serially numbered to differentiate it from previous pleadings or amendments and must state what allegations in the previous pleading are proposed to be deleted or added, if any, and where, by page, paragraph, and line number, the allegations are located.  (California Rules of Court, rule 3.1324(a).)  The motion shall also be accompanied by a declaration attesting to the effect of the amendment, why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and why the request for amendment was not made earlier.  (California Rules of Court, rule 3.1324(b).)  “ ‘[E]ven if a good amendment is proposed in proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial.’ ” (Record v. Reason (1999) 73 Cal.App.4th 472, 486, quoting Roemer v. Retail Credit Co. (1975) 44 Cal.App.3d 926, 939-940.)

Plaintiff seeks to add a new cause of action for negligent misrepresentation against State, RK, and Kang.  (Motion at pp. 2.)  Plaintiff also removes the ninth cause of action for contribution following the Court sustaining demurrers.  Plaintiff identifies the amendments and provides a copy of its proposed 4AC.  (Won Decl. ¶ 3 & Ex. A.)  Counsel’s declaration does not explain why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and why the request for amendment was not made earlier.

State National argues that this motion is an improper and untimely motion for reconsideration of the Court’s December 1, 2022 order.  (State Opposition at pp. 2-3.)  The Court specified that it was not granting leave to amend the eighth cause of action for negligent misrepresentation following demurrer because “the eighth cause of action is subject to being stricken.”  The Court granted State National’s motion to strike because the TAC’s cause of action for negligent misrepresentation was improperly added and exceeded the scope of the Court’s prior order granting leave to amend the sixth cause of action for intentional misrepresentation.  The December 1, 2022 order granted the motion without leave to amend as of right in response to the order; the order did not permanently foreclose Plaintiff’s claim.  The Court also stated, “The Plaintiff must obtain permission before adding new causes of action against the Defendants.”  Plaintiff is seeking to do so here through the proper procedures.

RK and Kang appear to argue that the motion should be denied because they were already dismissed.  (RK Motion at pp. 2, 4.)  The Court dismissed RK and Kang from the TAC without prejudice because the stricken eighth cause of action was the only cause of action brought against them, and it was added to the TAC without following the proper procedures.  (See 12/01/2022 Nunc Pro Tunc Order.)  There was no determination of the merits of any claim against them, and the dismissal was without prejudice.

State National, RK, and Kang also argue that the proposed cause of action is not sufficiently pleaded.  (State Motion at pp. 4-5; RK Motion at pp. 3-4.)  However, the Court does not ordinarily consider the validity of the proposed amended pleading when determining whether to grant leave to amend.  (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.)

Trial has not yet been yet.  The proposed amendment does not enlarge the issues in this case, and the parties have sufficient time to complete discovery on the new cause of action.  Because there is no showing of prejudice to State National, RK, or Kang, the motion for leave to file a fourth amended complaint is GRANTED.  Plaintiff is ordered to file and serve the 4AC within 5 days.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit.  Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

         Dated this 23rd day of March 2023