Case Number: GC046654 Hearing Date: July 03, 2014 Dept: A

Zheng v SPF 888 Walnut Pasadena

MOTION FOR LEAVE TO AMEND COMPLAINT
DEMURRER

Calendar: 10
Case No: GC046654
Date: 7/3/14

1. Motion of Cross-Complainants, SPF 888 Walnust Pasadena, LLC and
IDS Real Estate Group
Leave to file a Third Amended Cross-Complaint.

2. Motion of Cross-Defendant, Onewest Bank, N.A.
Demurrer to Second Amended Cross-Complaint.

DISCUSSION:
This case arises from the claim of the Plaintiff, Diehang Zheng, that the she suffered personal injuries when she tripped and fell over a wheel stop in a parking garage at 888 E. Walnut St., Pasadena on January 26, 2009. The Plaintiff claims that the Defendants are liable because they failed to distinguish the wheel stop from the ground and failed to provide reasonable lighting. In addition, the Plaintiff claims that the Defendants directed foot traffic into the wheel stop.
This hearing concerns the following matters:

1) the motion of Cross-Complainants, SPF 888 Walnut Pasadena, LLC, and IDS Real Estate Group, for leave to file a Third Amended Cross-Complaint; and
2) the demurrer of Cross-Defendant, Onewest Bank, N.A., to the Second Amended Cross-Complaint.

1. Motion of Cross-Complainants, SPF 888 Walnust Pasadena, LLC and
IDS Real Estate Group
The Cross-Complainants brought a Cross-Complaint for indemnity against the Coss-Defendants. The Cross-Complainants seek leave to amend their pleadings by adding a cause of action for breach of contract against R.E. Wall and by removing parties with whom there have been settlements.
CCP section 473(a) permits the Court to grant leave to a party to amend a pleading. The Court’s discretion regarding granting leave to amend is usually exercised liberally to permit amendment of pleadings. Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939. If a 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. Morgan v. Superior Court of Los Angeles County (1959) 172 Cal. App. 2d 527, 530.

The Cross-Complainants’ attorney, Eric Wayne, provides facts in his declaration to demonstrate that the facts underlying the new claims were discovered in the deposition of Forrest Peterson on February 4, 2014. These facts indicate that the motion is timely because it was filed after information was obtained through discovery.
Further, granting the motion will not cause prejudice to the Cross-Defendants. Since there is no trial date, the Cross-Defendants have sufficient time to obtain discovery and to prepare a defense to the new claims.

The Cross-Defendant argues that the new cause of action lack sufficient facts and is a sham. Generally, the Court does not ordinarily consider the validity of the proposed amended pleading when determining whether to grant leave to amend. Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1045. In the pending case, since there is no trial date, the Cross-Defendant may test the legal sufficiency of the new cause of action by filing the appropriate pleading or motion. Accordingly, this is not grounds to deny the motion.

Therefore, the Court will grant the Cross-Complainant’s motion because it is timely and granting the motion will not cause any prejudice.

2. Demurrer of Cross-Defendant, Onewest Bank, N.A.
The Cross-Defendant argues that the causes of action in the Second Amended Cross-Complaint lack sufficient facts. In light of the granting of the motion for leave to file a Third Amended Complaint, the Cross-Defendant’s demurrer is directed at a superseded pleading.
Accordingly, the Court will take the demurrer off calendar as moot.

RULING:
1. GRANT Cross-Complainants’ motion for leave to file a Third Amended Cross-Complaint.
2. TAKE OFF CALENDAR Cross-Defendant’s demurrer to Second Amended Cross-Complaint as moot.