2012-00119634-CU-BC

Bella Rosa HOA vs. Bella Rosa Condminiums LLC

Nature of Proceeding:     Motion to File Amended Cross-Complaint

Filed By:   Rasmussen, Glen M.

Defendant and Cross-Complainant The McKinley Associates, Inc.’s (“TMA”) motion for
leave to file a first amended cross-complaint (“FACC”) is DENIED.

This is a multi-party construction/design defect case.  TMA acted as the designer
during part of the project.  It alleges in the operative cross-complaint that the opposing
cross-defendants (“Cross-Defendants”) are responsible for Plaintiff Bella Rose
Homeowners Association’s (“Plaintiff”) damages.  The cross-complaint contains
causes of action for breach of contract, implied indemnity and declaratory relief.

Cross-Defendants have negotiated a settlement with Plaintiff, although the court has
not approved the settlement pursuant to CCP § 877.6.  TMA contends that the
proposed settlement would be unjust in that it could saddle TMA with disproportionate
responsibility for Plaintiff’s damages.

By the instant motion, TMS seeks to add causes of action against Cross-Defendants
for fraud and violation of Business and Professions Code §§ 5536 and 5500.1.  These
sections in the B&P Code define the practice of architecture and make it a
misdemeanor both to practice architecture without a license and use/display a licensed
architect’s implements (e.g., an architect’s stamp).  They do not provide for civil
remedies, and TMA does not argue otherwise.

Cross-Defendants oppose the motion on multiple grounds.  First, they argue that the
new causes of action are merely indemnity claims in disguise that will not survive their
proposed settlement with Plaintiff pursuant to CCP § 877.6.  Cross-Defendants also
argue that granting the motion would unfairly prejudice them given the trial date of
09/16/14.  Finally, Cross-Defendants contend that the proposed causes of action are
invalid.

In its discretion, the court may deny a motion for leave to amend where a proposed
cause of action is invalid.  (See Foxborough v. Van Atta (1994) 26 Cal.App.4th 217,
230 [citation omitted].)  Notwithstanding Cross-Defendants’ argument that the B&P
Code sections supporting one of TMA’s proposed causes of action is invalid, TMA
makes no attempt to demonstrate that those sections contemplate a private right of
action.  (See Animal Legal Defense Fund v. Mendes (2008) 160 Cal.App.4th 136, 141
[criminal statute only supports private right of action where Legislature intended one;
absence of legislative intent one way or the other results in no such right].)  The court
thus concludes that TMA’s proposed B&P Code cause of action is invalid and, in its
discretion, denies the motion to file the proposed FACC.

In denying the current motion, the court expresses no opinion whether TMA should be
permitted to file a more limited or different set of amendments.

Cross-Defendants’ request for judicial notice is GRANTED.

TMA is directed in the future to place notice of the court’s tentative ruling system in its
notices of motion, not in an accompanying memorandum of points and authorities.
(See Local Rule 1.06(D).)

The minute order is effective immediately.  No formal order pursuant to CRC 3.1312 or
further notice is required.