SUPERIOR COURT OF CALIFORNIA

COUNTY OF SANTA CLARA

Coordination Proceeding Special Title (Rule 3.550)

SKANSKA-SHIMMICK-HERZOG CONTRACT CASES

Coordinated Actions:

MFT Consulting Engineers, Inc. v. Anil Verma Associates, Inc., et al.

Skanska-Shimmick-Herzog v. LAN/TYLIN, et al.

Judicial Council Coordination Proceeding No. 4918

Santa Clara County Superior Court

Case No. 2016-1-CV-298747

Contra Costa County Superior Court

Case No. C15-00303

TENTATIVE RULING RE: MOTION FOR LEAVE TO FILE CONSOLIDATED SECOND AMENDED CROSS-COMPLAINT

The above-entitled action comes on for hearing before the Honorable Thomas E. Kuhnle on May 24, 2019, at 9:00 a.m. in Department 5. The Court now issues its tentative ruling as follows:

I. INTRODUCTION
II.
This case arises out of the Silicon Valley Berryessa Extension Project (the “Project”), a 10-mile extension of the BART rail line south from Warm Springs to Berryessa. (First Amended Complaint of Skanska-Shimmick-Herzog a Joint Venture for Breach of Contract (“FAC”), ¶ 7.) Plaintiff Skanska-Shimmick-Herzog, a Joint Venture (“SSH”) is the Design-Build Contractor on the Project. (Ibid.) SSH entered into a written agreement with defendants LAN/TYLIN, a Joint Venture, Lockwood, Andrews & Newnam, Inc. (“LAN”), and TY Lin International “TYLIN”) (collectively, “LTYL”) pursuant to which LTYL was to provide architectural, engineering, design, and scoping services to assist SSH in formulating and pricing its Proposal for the Project and thereafter to provide design services required by SSH’s Design-Build Contract. (Id. at ¶ 10.) SSH alleges that LTYL breached its subcontract with SSH by: (1) providing incorrect, incomplete, misleading, and defective design information and data; (2) failing to use its best efforts, skill, judgment, and abilities; (3) failing to ensure that services furnished by LTYL were performed by or under the supervision of persons who are highly skilled, experienced, and competent in their respective professions, and professionally qualified to perform those services; (4) otherwise failing to meet the standard of case required by the subcontract; and (5) failing to defend and indemnify SSH. (Id. at ¶ 22.)

The FAC, filed on October 11, 2016, sets forth a single cause of action for breach of contract.

On August 16, 2017, Anil Verma Associates, Inc. (“AVA”) filed its Cross-Complaint, which sets forth causes of action for equitable/implied indemnity and declaratory relief. Plaintiff and cross-defendant MFT Consulting Engineers, Inc. (“MFT”) demurred to each cause of action in the Cross-Complaint and, on November 3, 2017, the Court sustained the demurrer without leave to amend. Judgment against AVA was entered on March 5, 2018. AVA moved for reconsideration and for a new trial. On April 30, 2018, the Court granted the motion for a new trial, allowing AVA to file an amended pleading.

The First Amended Cross-Complaint (“FACC”) by AVA, filed on May 3, 2018, sets forth the following causes of action: (1) Implied Contractual Indemnity; and (2) Implied Contractual Indemnity. On November 19, 2018, the Court overruled MFT’s demurrer to the first cause of action in the FACC and sustained without leave to amend MFT’s demurrer to the second cause of action.

On March 18, 2019, SSH and its joint venture members, and LAN/TYLIN and its joint venture members, agreed to settle their respective claims and causes of action against each other in the Contra Costa action and the Santa Clara action. The LAN Cross-Complaint in the Contra Costa action and the LAN/TYLIN and LAN First Amended Complaint in the Santa Clara Action against AVA are unaffected by the settlement.

Cross-complainants LAN/TYLIN and LAN (the “Moving Parties”) now move for leave to file a consolidated second amended cross-complaint.

III. MOTION FOR LEAVE TO FILE CONSOLIDATED SECOND AMENDED CROSS-COMPLAINT
IV.
The Moving Parties seek to consolidate and replace two pleadings filed in the actions that now constitute Judicial Council Coordinated Proceeding No. 4918 – The LAN/TYLIN and LAN First Amended Complaint filed in Santa Clara Superior Court, case no. 2016-1-CV-298744 and the LAN Cross-Complaint filed in the Contra Costa Superior Court action, case no. C15-00303. The Moving Parties contend this will simplify the coordinated cases in the wake of the settlement of the largest set of claims in these matters, streamline the presentation of evidence, conserve resources, and eliminate jury confusion over multiple claims in separate actions.

In opposition, AVA argues there are several deficiencies with the motion, and the proposed amended pleading adds two new claims that lack merit. One of the deficiencies raised by AVA is dispositive and not curable.

The Moving Parties request leave to file a consolidated pleading, but this is not a consolidated action. In fact, on June 22, 2018, this Court denied the Moving Parties’ motion to consolidate the two coordinated cases in this action. The Moving Parties cannot ignore the Court’s prior ruling and attempt to file a consolidated pleading without the cases first being consolidated.

There are two coordinated cases in this action. While generally leave to file an amended pleading is liberally granted, the Moving Parties provide no authority supporting the proposition that two separate cases can join together to file a consolidated pleading.

Accordingly, the motion for leave to file a consolidated second amended cross-complaint is DENIED.

The Court will prepare the final order if this tentative ruling is not contested.