Case Number: GC050660 Hearing Date: June 06, 2014 Dept: A

Hernandez v Dynasty Coachworks

MOTION FOR LEAVE TO AMEND COMPLAINT

Calendar: 18
Case No: GC050660
Date: 6/6/14

MP: Cross-Complainants, Rigo Gutierrez and Audrey Gutierrez
RP: Cross-Defendants, Andrew Chang and Pride Public Adjusters
Joined by Cross-Defendant, Dynasty Coachwork International

RELIEF REQUESTED:
Order granting Cross-Complainants leave to file a Third Amended Cross-Complaint

DISCUSSION:
Dynasty Coachwork International, Inc. (“Dynasty”) claims that Rigo Gutierrez and Audrey Gutierrez have breached a lease agreement and independent contractor agreement by breaking into Dynasty’s property at the Santa Anita Inn to use for a banquet. Dynasty claims that Rigo Gutierrez and Audrey Gutierrez broke into the property, changed the locks, and deny Dynasty access to the property.
The Defendants, Rigo Gutierrez and Audrey Gutierrez , filed a Cross-Complaint against Dynasty and against Pride Public Adjusters, Inc., which was an insurance adjuster hired by Dynasty to help with an insured loss. The Defendants claim that the insurance proceeds were owed to them because they were additional insureds on Dynasty’s insurance policy.
No trial is set.

This hearing concerns the motion for leave to file a Third Amended Cross-Complaint by the Defendants/Cross-Complainants, Rigo Gutierrez and Audrey Gutierrez. They seek to add a new party, Andrew Chang, and four new causes of action, breach of written contract, fraud, breach of covenant of good faith and fair dealing, and equitable indemnification.
The Defendants/Cross-Complainants are seeking to add causes of action that were removed from the Second Amended Cross-Complaint on March 7, 2014 when the Court sustained demurrers to them without leave to amend. The Cross-Complainants added four new causes of action to their Second Amended Cross-Complaint: a cause of action for breach of written contract, a cause of action for fraud, a cause of action for breach of covenant of good faith and fair dealing, and a cause of action for equitable indemnification. Since the Cross-Complainants did not have leave of Court to add these four causes of action, the causes of action were contrary to the Court’s January 3, 2014 order that granted them leave to file a Second Amended Cross-Complaint.
On March 7, 2014, the Court sustained the Cross-Defendants’ demurrers to these four causes of action without leave to amend. The Court noted that the Cross-Complainants must file a noticed motion to obtain leave to add these claims. The Defendants/Cross-Complainants have now filed a noticed motion for leave to amend, as pointed out by the Court.

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 Defendants/Cross-Complainants filed declarations to provide facts that after their prior attorney, James Kellner, withdrew, they discovered that he had neglected to plead causes of action in the initial Cross-Complaint and the First Amended Cross-Complaint. The Defendants state that they hired new counsel and that they are seeking leave to plead the causes of action that their initial counsel failed to plead. This indicates that their motion is timely.

There is no trial date. Accordingly, granting leave to amend will not prejudice the Cross-Defendants’ ability to prepare a defense to the new claims.

Andrew Chang filed opposition papers in which he argues that the allegations against him are false. 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. This is because the preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings. Id. In the pending case, since there is no trial date, Andrew Chang may test the legal sufficiency of the new claims by filing the appropriate motion. Accordingly, this is not grounds to deny the motion.

The Cross-Defendant, Pride Public Adjusters, Inc., argues that the Court should not grant the Cross-Complainants leave because the Court has already sustained its demurrers to the causes of action in the Second Amended Complaint. However, as noted above, the Cross-Complainants are seeking leave to add causes of action that were removed from the Second Amended Cross-Complaint because they were filed without leave of Court. The pending motion seeks to obtain leave, as required by the Court.

Therefore, the Court will grant the motion of the Defendants/Cross-Complainants.

RULING:
Grant motion for leave to file a Third Amended Cross-Complaint.