Case Number: KC069725 Hearing Date: March 14, 2018 Dept: J

Re: Ameko APS, Inc. v. Julio Lopez (KC069725)

MOTION FOR LEAVE TO FILE FIRST AMENDED CROSS-COMPLAINT

Moving Party: Defendant/Cross-Complainant Julio Lopez

Respondent: No timely opposition filed (due 3/1/18)

POS: Moving OK

Plaintiff alleges that on or around 4/26/17, it entered into a written contract with Defendant Julio Lopez (“Lopez”), wherein plaintiff agreed to sell and install a Photovotaic Solar System for Lopez’s property in exchange for payment. Plaintiff claims that Lopez breached the contracts by failing to pay for the services rendered. Plaintiff alleges that on or around 4/26/17, it entered into a second written contract with Lopez, wherein plaintiff agreed to construct additional rooms for plaintiff’s property in exchange for payment. Plaintiff claims that Lopez breached this contract by expressing his intent not to proceed with same when the amount of the City’s fee was advised to him. The complaint, filed 10/18/17, asserts causes of action against Lopez and Does 1-10 for:

Breach of Written Contract for Photovotaic Solar System

Breach of Written Contract for Construction Agreement

On 12/18/17, Lopez filed his cross-complaint, asserting causes of action therein against plaintiff, Jose Luis Ramos and Roes 1-10 for:

Intentional Misrepresentation

Concealment

A Case Management Conference is set for 3/14/18.

Cross-Complainant Julio Lopez (“Lopez”) moves per CCP §§ 473 and 576 and California Rules of Court (“CRC”) Rule 3.1324, for leave to file his proposed First Amended Cross-Complaint (“FACC”) in order to add factual allegations and additional causes of action (i.e., for Cancellation of Contracts Pursuant to CC §§ 1689.6 and 1689.7, Violation of B&P Code § 7160, Negligent Misrepresentation, Violation of B&P Code § 7163, Violation of B&P Code §§ 17200, et seq. and Violation of CC § 1770) against Cross-Defendant Ameko APS, Inc. and to remove Jose Luis Ramos as a cross-defendant. The motion is not timely opposed.

“The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading…” CCP § 473(a)(1); and see § 576. A motion for leave to amend must (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. CRC Rule 3.1324(a). Additionally, a separate declaration must accompany the motion and must specify (1) the effect of the amendment, (2) the reason why the amendment is necessary and proper, (3) the time when the facts giving rise to the amended allegations were discovered, and (4) the reasons why the request for amendment was not made earlier. CRC Rule 3.1324(b).

“While a motion to permit an amendment to a pleading to be filed is one addressed to the discretion of the court, the exercise of this discretion must be sound and reasonable and not arbitrary or capricious. Richter v. Adams [(1941)] 43 Cal.App.2d 184, 187; Eckert v. Graham [(1933)] 131 Cal.App. 718, 721. And it is a rare case in which ‘a court will be justified in refusing a party leave to amend his pleadings so that he may properly present his case.’ Guidery v. Green [(1892)] 95 Cal. 630, 633; Marr v. Rhodes [(1900)] 131 Cal. 267, 270. If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion. Nelson v. Superior Court [(1950)] 97 Cal.App.2d 78; In re Estate of Herbst [(1938)] 26 Cal.App.2d 249; Norton v. Bassett [(1910)] 158 Cal. 425, 427.” Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.

The motion reflects compliance with CRC Rule 3.1324. Lopez’s counsel, Tyler D. Anthony (“Anthony”), explains that he substituted into the action as Lopez’s attorney of record on 12/28/17 and that, upon his substitution, he immediately contacted plaintiff’s counsel regarding Lopez’s intent to file a FACC and requested that plaintiff hold off on filing an answer to allow Lopez’s to file a FACC without leave of court. (Anthony Decl., ¶ 6). Anthony represents that plaintiff’s counsel at that time indicated that he had already submitted his client’s answer for filing. (Id.). Anthony further explains that he promptly conducted legal and factual investigation, which resulted in this motion. (Id., ¶ 7). He explains that “[t]he additional causes of action directly relate to the subject matter of the dispute between the parties as currently framed…[t]hese new causes of action seek to hold Cross-Defendant liable for its failure to comply with the relevant consumer protection laws in soliciting, memorializing, and executing the Home Improvement Contracts (new Cause of Action Nos. 1, 5-7), and for making misrepresentations to Mr. Lopez to induce him to enter into the Home Improvement Contracts (new Causes of Action Nos. 2, 4).” (Id., ¶ 8).

The action is in its infancy. Anthony represents that plaintiff has propounded a first set of requests for production and form interrogatories in response to the initial cross-complaint, but that no other written discovery has been propounded by the parties. (Id., ¶ 9). No depositions have been noticed or taken, and there is no trial date. (Id.).

Lopez’s motion, then, is granted. The proposed First Amended Cross-Complaint is deemed filed and served on the date of the hearing.