Case Name: John Calhoun v. Joseph Roca, et al.

Case No.: 18-CV-324529

Currently before the Court are: (1) the motion for leave to file a second amended complaint by plaintiff John Calhoun (“Plaintiff”); and (2) the demurrer and motion to strike by defendant Joseph Roca (“Defendant”).

Factual and Procedural Background

This is a professional negligence action. In 2014, Defendant, a licensed structural engineer, prepared initial and revised structural drawings and calculations for Plaintiff’s custom home. (First Amended Complaint (“FAC”), ¶¶ 2 & 6-8.) Defendant’s revised structural drawings and calculations were eventually approved by the City of Monte Sereno. (Id. at ¶ 8.)

Construction of Plaintiff’s home began in April 2016. (FAC, ¶ 9.) The foundation of the home was completed one month later. (Ibid.)

In May 2017, Plaintiff was informed by his contractor that crown molding could not be installed in the home due to a depression in the first-floor ceiling. (FAC, ¶ 10.) The next week, the contractor showed Plaintiff a depression in the second-floor subfloor. (Id. at ¶ 11.)

Shortly thereafter, Plaintiff called Defendant and told him about the two depressions. (FAC, ¶ 12.) After checking his calculations, Defendant acknowledged that his calculations were defective with respect to the 17-foot beam running between the first floor and second floor. (Ibid.) Defendant again acknowledged his responsibility for the defects when the parties meet at the house to discuss possible repairs. (Id. at ¶ 13.)

However, on May 30, 2019, Defendant contacted Plaintiff and asserted that his calculations were correct and he was not responsible for the defects. (FAC, ¶ 13.)

In June 2017, Defendant, his attorney, and a structural engineer performed a site inspection at the home. (FAC, ¶ 14.) Plaintiff did not hear anything following this inspection. (Ibid.) Consequently, Plaintiff retained a new structural engineer for the project. (Ibid.) Shortly thereafter, Defendant again acknowledged that his calculations were in error. (Id. at ¶ 15.)

Based on the foregoing allegations, Plaintiff filed his original complaint against Defendant on March 7, 2018. Subsequently, Plaintiff filed the operative FAC against Defendant on July 3, 2019, alleging a single cause of action for professional negligence.

On August 9, 2019, Plaintiff filed the instant motion for leave to file a second amended complaint. One month later, Defendant filed his demurrer and motion to strike. On December 31, 2019, the parties filed papers in opposition to the pending motions. The parties filed reply papers in support of their respective motions on January 7, 2020.

Discussion

I. Motion for Leave to File a Second Amended Complaint

Plaintiff seeks leave to file the proposed second amended complaint attached as Exhibit A to the declaration of his counsel, which was filed in support of the instant motion. The second amended complaint would add allegations regarding (1) his knowledge and discovery of Defendant’s alleged professional negligence and (2) agreements between the parties regarding extensions of time to file responsive pleadings and the requisite certificate of merit under Code of Civil Procedure section 411.35.

Defendant opposes Plaintiff’s motion on the grounds that Plaintiff failed to file the requisite certificate of merit under Code of Civil Procedure section 411.35 before applicable statute of limitations had run and Plaintiff’s claims against him are time-barred.

A. Legal Standard

Code of Civil Procedure section 473, subdivision (a)(1) states in pertinent part: “[t]he court may … , in its discretion after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars ….” (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 760.) In considering a motion for leave to amend, “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.” (Id. at p. 761.) “[I]t is a rare case” in which a court will be justified in denying a party leave to amend its pleadings. (Morgan v. Super. Ct. (1959) 172 Cal.App.2d 527, 530.) “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.” (Ibid.)

B. Analysis

Here, Defendant does not argue, and it does not otherwise appear to the Court, that Defendant will suffer any prejudice if Plaintiff is allowed to file his proposed second amended complaint. While Defendant disputes the legal merits of Plaintiff’s new allegations, the merits of the allegations are not properly before the Court at this time. Defendant’s arguments regarding the statute of limitations and the filing of the certificate of merit are more appropriately addressed in the context of a subsequent demurrer and/or motion to strike focused on these issues.

C. Conclusion

Accordingly, Plaintiff’s motion for leave to file a second amended complaint is GRANTED. Within 10 days of the date of the filing of the order on this matter, Plaintiff shall file his second amended complaint as a standalone document in the Court’s e-filing system.

II. Demurrer and Motion to Strike

Defendant demurs to the FAC on the grounds of lack of subject matter jurisdiction and failure to allege facts sufficient to constitute a cause of action. Defendant also moves to strike the FAC in its entirety on the ground that the pleading was not filed in conformity with the law.

In light of the Court’s ruling on Plaintiff’s motion for leave to file a second amended complaint, Defendant’s demurrer and motion to strike are MOOT.