2015-00186857-CU-PO

Luis Olguin vs. Bouey Termite & Construction, Inc.

Nature of Proceeding: Motion to File 1st Amended Complaint

Filed By: Dougan, Stephen J.

Plaintiff’s Motion to File First Amended Complaint is granted.

The trial date is May 7, 2018. Bouey Termite Construction, Inc.’s Motion for Summary Judgment is set for hearing on April 6, 2018.

Defendant’s Request for Judicial Notice is granted.

Plaintiff wishes to amend his complaint to clarify that is claim against defendant is for negligence rather than and premises liability. The Judicial Council Form Complaint alleged in Premises Liability cause of action that defendant was negligent. Plaintiff states he is not adding any new facts or parties to the pleading.

This action stems from a fall from a roof by plainitff, a roofing contractor’s employee, at a residential site. The Complaint was filed on November 17, 2015 against pest control/general contractor company Defendant Bouey, a real estate brokerage defendant Synergy, and lender & property owner-Defendant Wells Fargo. Wells Fargo was dismissed in July of 2017. Plaintiff, in Reply, states Synergy has also been dismissed. Hence, Bouey is the only remaining defendant.

The Complaint alleges that Bouey made improper repairs to the roof that resulted in plaintiff’s fall. Bouey has filed a motion for summary judgment contending that the repairs to the roof were performed by a third party, not Bouey.

Plaintiff’s proposed FAC seeks to clarify that the allegations against Bouey sound in negligence rather than premises liability by replacing the premises liability claim with a negligence claim. Plaintiff will also eliminate allegations against Wells Fargo, the owner of the property who was dismissed.

In opposition, Bouey contends plaintiff has added new facts to the pleading in an effort to avoid the pending motion for summary judgment motion set for April 6. The original complaint alleges that Bouey had negligently repaired the roof. The Proposed FAC contains a single cause of action for Negligence alleging that Bouey negligently certified that it had properly repaired the eave area without actually completing the repair, that Bouey failed to disclose that a third party had completed the repairs in its notice of completion of the work, and that Bouey failed to inspect the faulty repairs.

Defendant contends plaintiff has unreasonably delayed in seeking the amendment and knew of the facts to support the amendment over a year ago. Defendant contends this unreasonable delay has prejudiced it because it will affect Bouey’s ability to have its motion for summary judgment heard before the trial date of April 6, 2018, which plaintiff refuses to continue.

In Reply, Plaintiff states he has now dismissed Synergy as a defendant and proposes to file a Second Amended Complaint (SAC) that makes the only following allegations against Bouey, removing the detail alleged in the proposed FAC attached to the motion:

Plaintiff Luis Olguin, while working on the roof at 191 Silberhorn Drive, Folsom, CA, conducting roof repairs fell through a portion of the roof over the eaves by the rear patio that had been “improperly repaired” by defendant Bouey Termite and Construction, Inc.

Thus, the newly proposed SAC (sic) eliminates the factual detail objected to by Bouey that describes why Bouey is liable in negligence for the improper repair.

Thus, the question now becomes, why is this amendment necessary? It makes no substantive changes to the original complaint except to couch the same negligence allegations under a Negligence cause of action rather than Premises Liabiltiy, and to remove the dismissed defendants. Therefore, no prejudice to defendant exists because there is no need to continue any pending motion or trial date.

“Trial courts are vested with the discretion to allow amendments in the furtherance of justice… That Trial courts are to liberally permit such amendments, at any stage of the proceeding, has been established policy in this state…resting on the fundamental policy that cases should be decided on the merits.” Hirsa v Superior Court (1981) 118 Cal.App.3d 486, 488-489.

Judicial policy favors resolution of all disputed matters between the parties in the same lawsuit. Thus, the court’s discretion will usually be exercised liberally to permit amendment of the pleadings. See Nestle v. Santa Monica (1972) 6 Cal.3d 920,939; Mabie v Hyatt (1998) 61 Cal. App.4th 581, 596 (citing text). Howard v. County of San Diego (2010)184 Cal.App.4th 1422, 1428.” California Civil Procedure Before Trial (2012, Rutter) § 6:638 – 6:339. Courts apply the policy of great liberality in permitting amendments to the complaint “at any stage of the proceedings, up to and including trial” absent prejudice to the adverse party. Atkinson v Elk Corp. (2003) 109 Cal.App.4 th 739, 761.

The Court grants the motion to file the proposed SAC attached to the Reply. This amendment does not add any substantive changes to the original complaint as to Bouey. In any event, the court believes that the initially proposed FAC does not go beyond the scope of the previously pleaded facts against Bouey concerning the alleged negligent repair by Bouey. The fact that the original complaint was styled in “Premises Liability” is not dispositive. The language of the allegations, not the title of the cause of action, is controlling. And, the factual allegation that Bouey stated that it repaired the roof and did not disclose that a third party would make the repairs falls within the scope of the original allegations of negligence because they do not expand Bouey’s liability beyond being responsible for the roof repair the undertook.

No prejudice to defendant will result because the pending motion for summary judgment set for April 6 will go forward, with plaintiff’s opposition due March 23, 2018. The currently filed Answer will be deemed to apply to the Negligence cause of action in the First Amended Complaint (as amended in the document attached to the Reply) rather than the premises liability claim in the Original Complaint.

At defendant’s request, it may request a continuance of its pending motion for summary judgment if it deems amendment of the motion necessary as a result of the amended pleading. If the motion for summary judgment is continued, the court will vacate the trial date. ,

Plaintiff shall file and serve the proposed First Amended Complaint (as attached to the Reply misnamed as the proposed Second amended Complaint) on or before March 9, 2018. The Answer to the Original Complaint may be deemed the Answer to the FAC to avoid further delay.