Case Number: BC641716 Hearing Date: January 16, 2018 Dept: 97

44

jeremy todd,

Plaintiff,

v.

clark construction group-california, inc.,

Defendant.

Case No.: BC641716

Hearing Date: January 16, 2018

[TENTATIVE] order RE:

Motion for leave to file first amended cross-comlaint

Background

In this action, Plaintiff Jeremy Todd (“Plaintiff”) alleges that on December 9, 2014, he was injured as a result of a dangerous condition on the property. Plaintiff was working at a construction site at that time when he tripped and fell on a formwork. Plaintiff’s complaint, filed on November 22, 2016, alleges causes of action for general negligence and premises liability.

On March 3, 2017, Defendant Clark Construction Group-California, LP (“Clark”) filed a cross-complaint against SASCO for: (1) breach of contract; (2) express indemnity; (3) negligence; (4) implied indemnity; (5) comparative contribution; (6) total equitable indemnity; (7) equitable apportionment; and (8) declaratory relief.

On December 18, 2017, Clark filed a motion for leave to file a First Amended Cross-Complaint (“FACC”), in order to add Prieto Construction Company, Inc. (“Prieto”) as a new cross-defendant and add Prieto to all of the causes of action alleged in the initial cross-complaint. (See Vanis Decl., Ex. A.)

The motion is unopposed.

LEGAL STANDARD

CCP §473(a)(1) states: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.”

Furthermore, under CCP §428.10(b), a party to an action may file a cross-complaint setting forth any cause of action he has against a person to be liable thereon if the cause of action asserted in the cross-complaint arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him, or asserts a claim, right, or interest in the property or controversy which is the subject of the cause brought against him.

Judicial policy favors resolution of all disputed matters between the parties and, therefore, the courts have held that “there is a strong policy in favor of liberal allowance of amendments.” (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 296-97; see also Ventura v. ABM Industries, Inc. (2013) 212 Cal.App.4th 258, 268) [“Trial courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial where the adverse party will not be prejudiced.”].)

DISCUSSION

Clark seeks to add Prieto as an additional cross-defendant to its cross-action. Clark contends that it discovered Prieto was another subcontractor that installed the concrete curbs and steel angles for the project light rail tram. Plaintiff alleged tripped over a formwork at the construction site, and his knee allegedly hit a steel angle iron that was adjacent to the formwork. Clark states that it entered into a subcontract agreement with Prieto on February 17, 2014, which included a provision on subcontractor liability and its duty to defend and indemnify. (Vanis Decl., Ex. D.) Upon discovering these facts, Clark’s counsel states he prepared this instant motion and the proposed FACC. (Vanis Decl., ¶9.)

Here, the Court finds that Clark’s request to file the proposed FACC, adding Prieto as an additional cross-defendant, is proper. Notice was given to the parties in the action. Furthermore, the cross-complaint allegations against Prieto arise from the same transaction, occurrence, or series of transactions and occurrences that give rise to the allegations surrounding Plaintiff’s injuries. As policy favors liberally granting such motions, the motion for leave to file the proposed FACC is granted.

Conclusion and order

The motion is granted. Clark is ordered to provide a separately lodged copy of the proposed First Amended Cross-Complaint to the courtroom judicial assistant for filing this date. If the parties submit on the tentative, Clark is ordered to file the First Amended Cross-Complaint within 5 court days of this order.

Clark is ordered to provide notice of this order.