Judge: William A. Crowfoot, Case: 22AHCV00817, Date: 2023-05-16 Tentative Ruling

Case Number: 22AHCV00817    Hearing Date: May 16, 2023    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT

I.            INTRODUCTION

On April 6, 2023, plaintiffs Robert E. Wolfe and Kelly J. Koelker (collectively, “Plaintiffs”) filed this renewed motion for leave to file a first amended complaint (“FAC”).  Plaintiffs’ previously motion was denied on March 28, 2023, for procedural errors.

Plaintiffs’ proposed FAC includes a number of changes, including adding allegations that they have complied with a claims presentation requirement (FAC, Item 9) and changing the date of the alleged negligent acts and the date that defendant City of Pasadena (“City”) and Spiniello Co. (“Spiniello”) entered into a written contract (FAC, pp. 4-5).  The proposed FAC also adds an allegation that City and Spiniello engaged in willful misconduct.  (FAC, p. 4.) 

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.)  “Although courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial . . . this policy should be applied only ‘where no prejudice is shown to the adverse party.’  [Citation].  A different result is indicated ‘where inexcusable delay and probable prejudice to the opposing party’ is shown.  [Citation.]”  (Magpali v. Farmers Group, Inc. (1996) 47 Cal.App.4th 471, 487.)

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).)

In ruling on a motion for leave to amend the complaint, the court does not consider the merits of the proposed amendment, because “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.”  (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.)  While the court may deny leave to amend where the proposed amendment is insufficient to state a valid cause of action or defense, such denial is most appropriate where 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.)

III.        DISCUSSION

Jerome M. Jackson, Plaintiffs’ counsel, declares that new facts supporting the proposed amendments were discovered on December 28, 2022 when City filed its cross-complaint against Spiniello.  (Jackson Decl., ¶ 4.)  Specifically, Mr. Jackson claims that the cross-complaint alleged that Spiniello failed to install a water main properly by laying the water line directly on top of the sewer line leading to Plaintiffs’ residence “without sufficient spacing (one foot) and without slurry/other material protecting Plaintiffs’ sewer line from the weight of the water line laid directly on top of it.”  (Jackson Decl., ¶ 4 [citing City’s Cross-Compl., ¶¶ 16-17].)  Mr. Jackson also states that it was newly discovered that Spiniello’s actions “violated both [City]’s job specifications and Spiniello’s own proposal” because he did not have copies of those specifications or the proposal until they were attached to the City’s cross-complaint. (Id., ¶¶ 4-5.)

Mr. Jackson states that this motion could not have been filed earlier because he did not see the cross-complaint until he returned to the office on January 4, 2023 and did not review it until January 21, 2023 after he had total hip replacement surgery on January 11, 2023.  (Jackson Decl., ¶ 6.)  He also states that based on consulting other professionals, a contractor’s deviation from the requirements of the job specifications and proposal is “motivated in most instances by the desire to cut costs and rush the completion of a project.”  (Id., ¶ 7.)  Plaintiffs’ initial motion to amend the Complaint was filed on February 28, 2023.  (Jackson Decl., ¶ 13.) 

Mr. Jackson further explains that the “date of negligence” must be changed from “on or about 7/7/21” to “presently unknown” because Plaintiffs had first discovered a problem with the sewer line on July 7, 2021, but it is unknown when the defective work was performed.  (Jackson Decl., ¶ 10.)   Similarly, it was only discovered through City’s cross-complaint that City and Spiniello entered into a contract for the water line work on May 15, 2004.  (Id., ¶ 11.) 

Last, Mr. Jackson states that these new facts lead to an allegation that City and Spiniello engaged in willful misconduct because they knew that safe and proper installation of the water line would require sufficient spacing and the installation of slurry, but failed to ensure that those two conditions occurred.  (Jackson Decl., ¶ 12.)  Mr. Jackson states that Spiniello’s deviation from its own job proposal evinces an intentional omission of acts with wanton and reckless disregard of the consequences, justifying the allegation that it engaged in “willful conduct.”   (Ibid.)

In its opposition brief, Spiniello argues that Plaintiffs have not shown that any new facts were discovered because the language in their claim presented to the City in January of 2022 already stated that there was insufficient spacing and no materials protecting the sewer line from the weight of the water line.  (Zwarg Decl., Ex. C.)  This argument misses the point of Plaintiffs’ motion, which asserts that it was previously unknown that the proper requirements for the sewer and water lines were mandated and proposed by both the City and Spiniello, yet those requirements were not adhered to. 

Spiniello also unpersuasively argues that Plaintiffs’ amended complaint will be prejudicial because it will force Spiniello to engage in additional discovery.  Spiniello is already asserting a defense based on the statute of limitations.  (Opp., pp. 9-10.) Just as adding these allegations does not change Plaintiffs’ burden of proof on summary judgment, these allegations do not change Plaintiffs’ right to conduct discovery about Spiniello’s defenses.  If Spiniello intends to rely on the statute of limitations as a defense, Plaintiffs are entitled to conduct discovery regarding its asserted defenses. 

Lastly, Plaintiffs are not required to plead willful misconduct with specificity because they are not asserting a fraud claim but simply addressing the exception to the statute of limitations on which Spiniello is admittedly basing its defense.  None of the authorities cited by Spiniello establish that specificity is required when making an allegation of willful misconduct outside the context of cause of action for fraud. 

IV.         CONCLUSION

Plaintiffs’ motion for leave to amend is GRANTED.  Plaintiffs are ordered to file their proposed amended complaint within 10 days of the date of this hearing. 

          Moving party to give notice.

Dated this 16th day of May, 2023

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.