Judge: William A. Crowfoot, Case: 22AHCV00817, Date: 2023-03-28 Tentative Ruling

Case Number: 22AHCV00817    Hearing Date: March 28, 2023    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT

I.            INTRODUCTION

On October 13, 2022, plaintiffs Robert E. Wolfe and Kelly J. Koelker (collectively, “Plaintiffs”) filed this action against the City of Pasadena (“City”) and Spiniello Co. (“Spiniello”) (collectively, “Defendants”) alleging breach of contract and general negligence in connection with the installation and repair of a water main. 
          On December 28, 2022, City filed a cross-complaint against Spiniello. 

On February 28, 2023, Plaintiffs filed this motion for leave to file a First Amended Complaint (“FAC”).  

II.          LEGAL STANDARD

The court may, in its discretion and after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading, including adding or striking out the name of any party, or correcting a mistake in the name of a party, or a mistake in any other respect.  (Code Civ. Proc., § 473, subd. (a)(1).)  “Public policy dictates that leave to amend be liberally granted.”  (Centex Homes v. St. Paul Fire & Marine Ins. Co. (2015) 237 Cal.App.4th 23, 32.)  However, the court may deny leave to amend where the proposed amendment is insufficient to state a valid cause of action or defense, and the insufficiency cannot be cured by further amendment—i.e., where the statute of limitations has expired or the insufficiency is established by controlling caselaw.  (California Casualty Gen. Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 280-281, disapproved on other grounds in Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390.)

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.  (Cal. 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.  (Cal. Rules of Court, Rule 1.324(b).)

III.        DISCUSSION

Plaintiffs’ motion is procedurally deficient because the Declaration of Jerome M. Jackson does not identify what the proposed amendments are, what facts support the proposed amendments, when those facts were discovered, or why the request for amendment was not made earlier.  Instead, Mr. Jackson cryptically declares that he has developed evidence supporting claims of willful misconduct and fraudulent concealment “as a result of independent investigation and attorney work product.”  (Jackson Decl., ¶ 3.)  The Court also notes, among other things not mentioned in the Jackson Declaration, that Paragraph 9(a) of the Complaint is now checked but the Jackson Declaration does not describe the reasons for this significant proposed amendment to the Complaint.

The Court notes that the proposed FAC also includes a statement that section 337.15 of the Code of Civil Procedure does not apply and adds that Plaintiffs did not discover the alleged damage until “on or about Juy [sic] 7, 2021.”  The proposed FAC also removes the date identifying the commencement of the action and states “presently unknown” instead.  As Defendants observe, these changes appear to be an attempt to plead around the applicable statute of limitations.  In fact, Plaintiffs admit in their reply brief that the proposed amendments are intended to respond to Defendants’ assertion of the statute of limitations as an affirmative defense. 

Code of Civil Procedure section 337.15 provides that the statute of limitations period for claims involving latent construction defects is 10 years after “substantial completion” of the project.  (CCP § 337.15.)  Section 337.15 does not apply to actions based on willful misconduct or fraudulent concealment. (CCP, § 337.15(f).) For the section 337.15(f) to apply, the plaintiff must prove “(1) there was willful misconduct involved in the construction of [the plaintiff’s home], (2) such willful misconduct resulted in the alleged latent construction defects and (3) such willful misconduct was committed by the defendants or the facts and circumstances are such that the willful misconduct of others is appropriately chargeable to them.” (Acosta v. Glenfed Development Corp. (2005) 128 Cal.App.4th 1278, 1286.) “‘[W]illful misconduct implies the intentional doing of something either with knowledge, express or implied, that serious injury is a probable, as distinguished from a possible, result, or the intentional doing of an act with a wanton and reckless disregard of its consequences.’” (Acosta, supra, 128 Cal.App.4th at 1293 [quoting Ewing v. Cloverleaf Bowl (1978) 20 Cal.3d 389, 402].) 

Here, Plaintiffs merely allege that Defendants “engaged in both willful misconduct and fraudulent concealment” without identifying any factual basis for these vague allegations.  Allowing the proposed FAC to be filed without any such factual basis would only initiate a needless round of challenges to the FAC and increase litigation costs for all parties.  (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487 [leave to amend is not appropriate where prejudice is imposed on the opposing party, including “delay in trial, loss of critical evidence, added costs of preparation, increased burden of discovery, etc.”].)  Furthermore, insofar as the amendments are intended to stave off any summary judgment motion based on the statute of limitations, such amendments would be futile, as willful misconduct is an exception to the 10-year limitation period, and Plaintiffs’ new allegations would not shift the burden of production and persuasion to Defendants on summary judgment.  Regardless of the allegations in the Complaint, Plaintiffs would be required to demonstrate that triable issues of fact exist regarding the issue of willful misconduct.  (Acosta, supra, 128 Cal.App.4^th at p. 1293 [plaintiffs bear burden of production and persuasion on summary judgment and at trial regarding the issue of willful misconduct; plaintiffs’ allegations supporting statutory assumption in complaint do not shift burden to defendants].) 

IV.         CONCLUSION

Accordingly, Plaintiffs’ motion is DENIED without prejudice.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Dated this 28th day of March, 2023