HEARING ON MOTION TO/FOR LEAVE TO FILE 3RD AMENDED COMPLAINT FILED BY MARLO JOHNSON
* TENTATIVE RULING: *

Plaintiffs’ Motion for Leave to File Third Amended Complaint is granted. Prior to entry of the court’s order granting the motion, plaintiffs must submit a proposed Third Amended Complaint that clearly indicates all insertions and deletions, as discussed below. This proposed Third Amended Complaint must be filed and served by Tuesday, April 8, 2014. Defendants Pulte Homes, Inc.’s and South Valley Plumbing, Inc.’s Request to Continue Trial is denied.

Plaintiffs request leave to file a Third Amended Complaint alleging new causes of action for negligence and strict liability based upon a December 11, 2013 development of the law. Plaintiffs contend that the additional causes of action derive from identical factual circumstances and that the underlying facts of the pleadings remain substantially identical. Declaration of Mark R. Kirkland in support of Motion for Leave to File Third Amended Complaint ¶ 4. Plaintiffs also propose housekeeping amendments to remove Plaintiffs who have been dismissed. Kirkland Decl. ¶ 3.

As an initial matter, the proposed Third Amended Complaint submitted with Plaintiffs’ Motion does strike-through several names and the proposed additions appear to be indicated in bold. However, Plaintiffs moving papers indicate that “Plaintiffs seek to join the owners of one (1) home in the PROJECT already at issue in this matter who are prosecuting an assignment from another Plaintiff.” Memorandum of Points and Authorities in support of Motion for Leave to File Third Amended Complaint at 6:7-9. It is not clear from the proposed Third Amended Complaint which of the Plaintiff(s) are seeking to join to prosecute an assignment from another Plaintiff. Plaintiffs must provide the Court and all parties in this action with a proposed Third Amended Complaint that clearly indicates all deletions and additions by page, paragraph and line number and provides explanations for the Plaintiffs added, either from the consolidated Bailey action or that Plaintiffs seek to join to prosecute an assignment. Cal. Rules of Court 3.1324.

Defendant Pulte contends that Plaintiffs’ Motion is procedurally deficient for failure to comply with Cal. Rules of Court 3.3124(b). While Mr. Kirkland’s Declaration does not explicitly set forth the reasons why the request was not made earlier, it is reasonably implied from the moving papers’ explanation of the Supreme Court’s December 11, 2013 denial of a request to depublish Liberty Mutual Insurance v. Brookfield Crystal Cove, LLC (2013) 219 Cal. App. 4th 98. Further, the Supplemental Declaration of Aman U. Syed filed with the Plaintiffs’ reply papers clarifies any question regarding why the request was not made earlier.

Defendant Pulte also argues that the proposed additional Causes of Action fail to state a cause of action against it because the proposed Third Amended Complaint fails to allege the existence of any actual damages. Plaintiffs’ Joint Reply Brief at 6:26 – 7:16 identifies allegations of actual damages in the proposed Third Amended Complaint. Where the adequacy of a pleading is unclear, the proper course of action is to permit amendment, after which defendants may test the complaint’s sufficiency via demurrer or motion for judgment on the pleadings. Armenta ex rel. City of Burbank v. Mueller Co. (2006) 142 Cal. App. 4th 636, 643.

Pulte contends that it will be prejudiced because the time in which it can challenge Plaintiffs’ claim by a Motion for Summary Judgment or Summary Adjudication has passed. It is well established that California courts have a policy of great liberality in allowing amendments at any stage of the proceeding so as to dispose of cases upon their substantial merits. Bd. of Trustees of Leland Stanford Jr. Univ. v. Superior Court (2007) 149 Cal. App. 4th 1154, 1163. Fogel v. Farmers Grp., Inc. (2008) 160 Cal. App. 4th 1403, 1423-24.
Defendant South Valley opposes the Motion for Leave to File a Third Amended Complaint on the grounds that Plaintiffs impermissibly name additional plaintiffs and defendants by “merging” the consolidated Johnson, et al. v. Pulte Homes, Inc. et al., case number MSC 10-02106 and Bailey, et al. v. Pulte Homes, Inc. et al., formerly case number CIVMSC12-00296. South Valley contends that merging and consolidating are different procedures and that granting the Motion for Leave to Amend will create a number of unresolved factual, legal and procedural issues. Defendant South Valley cites no authority for this position. Under Code of Civil Procedure § 1048 and case law, there are two types of consolidation: a consolidation for purposes of trial only, where the two actions remain otherwise separate; and a complete consolidation or consolidation for all purposes, where the two actions are merged into a single proceeding under one case number and result in only one verdict or set of findings and one judgment. Hamilton v. Asbestos Corp., Ltd., (2000) 22 Cal. 4th 1127, 1147. Here, this Court’s March 7, 2013 Order granting consolidation is not limited for purposes of trial only. Thus, the order of complete consolidation resulted in (1) separate actions becoming a single action, (2) the pleadings in the various actions being considered as an overall set of pleadings, and (3) a single verdict and judgment issuing for all parties on all issues. See Id. at 1147; Kropp v Sterling Sav. & Loan Ass’n (1970) 9 Cal. App. 3d 1033, 1046-1047.
South Valley also contends that granting the Motion for Leave to file a Third Amended Complaint will be prejudicial given that Plaintiffs are also requesting that all defendants be deemed to have been served and appeared in the proposed Third Amended Complaint. However, Pre-Trial Order No. 12 has already ordered that “Any Complaints, Cross-Complaints and Answers filed and served in the case entitled Johnson, et al. v. Pulte Homes, Inc. et al. being case number MSC 10-02106 is deemed served in the case entitled Bailey, et al. v. Pulte Homes, Inc. et al., being case number CIVMSC12-00296.” Further, upon complete consolidation, “the actions are viewed as if the same plaintiff or plaintiffs had filed a single complaint on joined causes of action against the same defendant or defendants.” Kropp v. Sterling Sav. & Loan Assn., (1970) 9 Cal. App. 3d 1033, 1046.
South Valley Plumbing further argues that granting the Motion will be unduly prejudicial because different statutes of limitation are at issue in SB800 statutory claims than are at issue in strict liability and negligence claims. In cases where a new theory of liability has been added and where Plaintiffs seek to relate back to the original complaint, it is clear that it is the sameness of the facts rather than the rights or obligations arising from those facts that is determinative. Amaral v. Cintas Corp. No. 2 (2008) 163 Cal. App. 4th 1157, 1199-2000. Here, where it is the same defects that are alleged as the basis for the SB800, strict liability and negligence claims, amendment to add a new theory of liability is appropriate. South Valley further argues that tens of thousands of dollars that have been invested in the SB800 defense strategy will be put at risk. South Valley does not explain why it must abandon the tens of thousands of dollars spent on the SB800 defense strategy. The SB800 cause of action remains in the proposed Third Amended Complaint and South Valley can still use the developed defense strategy to defend against the SB800 cause of action.
South Valley also argues that policy considerations preclude extending Liberty Mutual here. That issue is not before the Court on this Motion for Leave to File Third Amended Complaint.

Both Pulte and South Valley request a Continuation of the current trial date if the Court grants this Motion. Neither Pulte’s nor South Valley’s oppositions demonstrate the good cause required to continue the trial.

For the reasons stated above Plaintiffs’ Motion for Leave to File Third Amended Complaint is granted conditioned on Plaintiffs providing the Court and all parties with the Third Amended Complaint that clearly indicates all deletions and additions by page, paragraph and line number and provides explanations for the Plaintiffs added, either from the consolidated Bailey action or that Plaintiffs seek to join to prosecute an assignment. Cal. Rules of Court 3.1324. Plaintiffs’ request for deeming the pleadings already filed as answers is granted. Defendants have thirty days from entry of the order to assert additional defenses. Defendants’ request to continue the current trial date is denied.