Case Number: BC608065 Hearing Date: April 10, 2018 Dept: A

# 9. Ismael Torres, Jr. v. Design Group Facility Solutions, Inc., et al.

Case No.: BC608065

Matter on calendar for: Hearing on motion for leave to file First Amended Complaint

Tentative ruling:

I. Background

This action arises from Plaintiff Ismael Torres’ alleged injuries caused by his falling through a skylight while working for Defendant H.J. Vast, Inc. on the roof of a building owned by Defendant Santa Monica Seafood Company (“SMS”). Allegedly: Defendant Design Group Facility Solutions, Inc. (“DGFS”) was the general contractor hired by SMS for a construction project on the property of the alleged accident. Defendant Watson Partners L.P. is the owner of the property. DGFS had contracted with Defendant C&L Refrigeration Corporation to install refrigeration systems at the property. C&L contracted with Vast to install electrical components for the refrigeration systems.

Plaintiff has sued Vast, C&L, Watson, SMS, DGFS, and others for (1) Negligence – Personal Injury; (2) Failure to Provide a Safe Place to Work; (3) Strict Products Liability Resulting in Personal Injury; (4) Negligent Product Liability; and (5) Breach of Express and Implied Warranties. Plaintiff asserts only Causes of Action 1-2 against C&L.

Plaintiff moves for leave to file a First Amended Complaint (“FAC”) requesting punitive damages against C&L.

C&L has filed a motion for summary judgment against Plaintiff’s operative complaint. The MSJ is scheduled for hearing on June 5, 2018.

Jury Trial is scheduled for October 15, 2018. This case was filed in January, 2016.

II. Standard

CCP §§ 473(a)(1) and 576 provide courts with the authority to allow the amendment of pleadings upon a showing of good cause and in the absence of prejudice. CRC, Rule 3.1324(b) requires that Plaintiff prepare a declaration specifying (i) the effect of the amendment, (ii) why the amendment is necessary, (iii) when the facts giving rise to the amended allegations were discovered, and (iv) why the request for amendment was not made earlier.

“If discovery and investigation develop factual grounds justifying a timely amendment to a pleading, leave to amend must be liberally granted.” (Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596.) California judicial policy generally favors permitting amendment to pleadings. (See Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.)

Denial of leave to amend is appropriate where (1) the party seeking the amendment has been dilatory; and (2) the delay has prejudiced the opposing party. (Hirsa v. Superior Court (1981) 119 Cal.App.3rd 486, 490.)

III. Analysis

Plaintiff seeks to amend the Complaint to request (and state facts establishing) punitive damages against C&L. Plaintiff has purportedly recently discovered evidence, through deposition testimony and other discovery, that C&L (1) was solely responsible for implementing safety measures at the work site pursuant to contract; (2) knew about the skylight hazards that caused Plaintiff’s injuries, since there were two serious prior accidents involving C&L’s employees falling through skylights on its jobsites; and yet (3) failed to provide any type of fall protection to its workers, or employees of its subcontractors (like Plaintiff). (Johnson Decl., ¶¶ 12-14, 17, Exhs. 12-13.) Plaintiff has complied with CCP §§ 473(a)(1) and 576.

In opposition, C&L does not dispute that Plaintiff timely moved for amendment. C&L does not argue that Plaintiff has been dilatory. C&L instead argues (1) Plaintiff has failed to present facts supporting a prayer for punitive damages, and (2) C&L would face prejudice because C&L has a pending motion for summary judgment based on the claims of the complaint.

Both arguments are unavailing. First, as both sides note, a court typically does not consider the validity of the proposed amended pleading in deciding whether to grant leave to amend. (See Kittredge Sports Co. v, Superior Court (1989) 213 Cal.App.3d 1045, 1048.) Such consideration is better reserved for “demurrer, motion for judgment on the pleadings or other appropriate proceedings [motion to strike].” (California Casualty Gen. Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 281.) And C&L has not shown that the proposed FAC is deficient as a matter of law and the defect cannot be cured by appropriate amendment. (Id.) Plaintiff has met its relatively low burden under CCP §§ 473(a)(1), 576, and clear judicial policy favoring permission of amendment to pleadings. C&L will have an opportunity to attack the validity of the amended pleading via motion to strike or another proceeding.

Second, C&L has not demonstrated that it would face prejudice. Trial is almost seven months away, on October 15, 2018. C&L has ample time to file a responsive pleading to the FAC, conduct additional discovery, file appropriate motions, and still be ready for trial on October 15, 2018.

C&L’s motion for summary judgment against Plaintiff’s original complaint is scheduled for hearing on June 5, 2018. The Court has discretion to allow amendment to the complaint. (Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 242; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258.) Since the operative complaint frames the issues of the MSJ, the Court will hear from the parties concerning whether it is appropriate to take the pending MSJ off calendar.

IV. Ruling

The Court grants the motion. Plaintiff must file and serve the proposed FAC within 5 days.