This case was last updated from Los Angeles County Superior Courts on 07/30/2019 at 16:00:10 (UTC).

JAMES GRESHAM VS MCCARTHY BULIDING COMPANIES INC ET AL

Case Summary

On 06/26/2015 JAMES GRESHAM filed a Personal Injury - Other Personal Injury lawsuit against MCCARTHY BULIDING COMPANIES INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are DEIRDRE HILL, HOLLY J. FUJIE and YOLANDA OROZCO. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6403

  • Filing Date:

    06/26/2015

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

DEIRDRE HILL

HOLLY J. FUJIE

YOLANDA OROZCO

 

Party Details

Plaintiffs and Petitioners

GRESHAM JAMES

EMPLOYERS COMPENSATION INSURANCE COMPANY

HARTFORD INSURANCE COMPANY

Defendants, Respondents and Cross Plaintiffs

BAPKO METAL FABRICATORS

BCM

BOEHLING CONSTRUCTION MANAGEMENT

DOES 1 THROUGH 20

MCCARTHY BUILDING COMPANIES INC.

MORROW-MEADOWS CORPORATION

TORRANCE MEMORIAL MEDICAL CENTER

BCM BOEHLING CONSTRUCTION MANAGEMENT

Defendants, Respondents and Cross Defendants

TORRANCE MEMORIAL MEDICAL CENTER

ASSI SECURITY

13 More Parties Available

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

FISHER RICHARDS A. LAW OFFICES OF

MAGANA CATHCART & MCCARTHY

WITZER BRIAN D.

LAW OFFICES OF BRIAN D. WITZER

BISETTI RICHARD LOUIS

LUCKS EDWIN J.

Defendant, Respondent and Cross Defendant Attorneys

NEWCOMB MARK D.

PALMER CHARLES A. ESQ.

KOELLER NEBEKER CARLSON & HALUCK LLP

LYNBERG & WATKINS LAW OFFICES OF

PLESE MARIA

PLACE KEVIN L. ESQ.

TREMBLEY CHRISTOPHER K.

KRMPOTIC JOY STEPHANIE

KRMPOTIC J. STEPHANIE

LOW BALL & LYNCH

BURKE MICHAEL SHANNON

9 More Attorneys Available

 

Court Documents

Minute Order

5/11/2017: Minute Order

Minute Order

12/6/2017: Minute Order

EX PARTE APPLICATION OF DEFENDANTS, MCCARTHY BUILDING COMPANIES, INC., ET AL, FOR AN ORDER CONTINUING THE TRIAL DATE AND FINAL STATUS CONFERENCE DATE, OR IN THE ALTERNATIVE, FOR AN ORDER SHORTENING TI

12/6/2017: EX PARTE APPLICATION OF DEFENDANTS, MCCARTHY BUILDING COMPANIES, INC., ET AL, FOR AN ORDER CONTINUING THE TRIAL DATE AND FINAL STATUS CONFERENCE DATE, OR IN THE ALTERNATIVE, FOR AN ORDER SHORTENING TI

DEFENDANTS, MCCARTHY BUILDING COMPANIES, INC.; TORRANCE MEMORIAL MEDICAL CENTER; AND, MORROW-MEADOWS CO.'S MOTION TO COMPEL DEFENSE MENTAL EXAMINATION OF PLAINTIFF, JAMES GRESHAM; MEMORANDUM OF POINTS

1/11/2018: DEFENDANTS, MCCARTHY BUILDING COMPANIES, INC.; TORRANCE MEMORIAL MEDICAL CENTER; AND, MORROW-MEADOWS CO.'S MOTION TO COMPEL DEFENSE MENTAL EXAMINATION OF PLAINTIFF, JAMES GRESHAM; MEMORANDUM OF POINTS

NOTICE OF CHANGE OF HEARING DATE RE DEFENDANTS' MOTION TO COMPEL NEUROPSYCHIATRIC EXAMINATION OF PLAINTIFF, JAMES GRESHAM

2/7/2018: NOTICE OF CHANGE OF HEARING DATE RE DEFENDANTS' MOTION TO COMPEL NEUROPSYCHIATRIC EXAMINATION OF PLAINTIFF, JAMES GRESHAM

DECLARATION OF DAVID HILL IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION BY CROSS-COMPLAINANTS, MCCARTHY BUILDING COMPANIES, INC.; TORRANCE

3/16/2018: DECLARATION OF DAVID HILL IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION BY CROSS-COMPLAINANTS, MCCARTHY BUILDING COMPANIES, INC.; TORRANCE

DECLARATION OF JAKE THEOLOGIDY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ ADJUDICATION AS TO PLAINTIFF'S COMPLAINT BY DEFENDANTS, MCCARTHY BUILDING COMPANIES, INC.; ETC

4/2/2018: DECLARATION OF JAKE THEOLOGIDY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ ADJUDICATION AS TO PLAINTIFF'S COMPLAINT BY DEFENDANTS, MCCARTHY BUILDING COMPANIES, INC.; ETC

DEFENDANTS, MCCARTHY BUILDING COMPANIES, INC.; ETC

4/2/2018: DEFENDANTS, MCCARTHY BUILDING COMPANIES, INC.; ETC

CROSS-COMPLAINANTS' REPLY TO CROSS-DEFENDANT, ASSI SECURITY'S STATEMENT OF OBJECTIONS TO CROSS-COMPLAINANTS' EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ ADJUDICATION

6/1/2018: CROSS-COMPLAINANTS' REPLY TO CROSS-DEFENDANT, ASSI SECURITY'S STATEMENT OF OBJECTIONS TO CROSS-COMPLAINANTS' EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ ADJUDICATION

Notice of Case Reassignment and Order for Plaintiff to Give Notice

8/13/2018: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Other -

8/31/2018: Other -

COMPLAINT IN INTERVENTION FOR RECOVERY OF WORKERS' COMPENSATION BENEFITS

7/26/2016: COMPLAINT IN INTERVENTION FOR RECOVERY OF WORKERS' COMPENSATION BENEFITS

ORDER RE STIPULATION TO ALLOW DEFENDANTS TO FILE A CROSS-COMPLAINT;

9/23/2016: ORDER RE STIPULATION TO ALLOW DEFENDANTS TO FILE A CROSS-COMPLAINT;

PROOF OF SERVICE SUMMONS

10/20/2016: PROOF OF SERVICE SUMMONS

DEFENDANT MCCARTHY BUILDING COMPANIES, INC.'S NOTICE OF POSTING JURY FEES

8/2/2017: DEFENDANT MCCARTHY BUILDING COMPANIES, INC.'S NOTICE OF POSTING JURY FEES

Minute Order

8/4/2017: Minute Order

REQUEST FOR DISMISSAL

12/7/2017: REQUEST FOR DISMISSAL

NOTICE OF ENTRY OF DISMISSAL AND PROOF OF SERVICE - OTHER: PREMISES LIABILITY AND NEGLIGENCE

12/15/2017: NOTICE OF ENTRY OF DISMISSAL AND PROOF OF SERVICE - OTHER: PREMISES LIABILITY AND NEGLIGENCE

101 More Documents Available

 

Docket Entries

  • 07/12/2019
  • Association of Attorney; Filed by Assi Security (Cross-Defendant)

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  • 06/27/2019
  • at 08:30 AM in Department B, Deirdre Hill, Presiding; Hearing on Motion for Summary Adjudication - Not Held - Rescheduled by Court

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  • 06/05/2019
  • Cross Defendant ASSI Security Index of Exhibits Supporting Motion for Summary Adjudication of Issues; Filed by Assi Security (Cross-Defendant)

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  • 06/04/2019
  • Request for Judicial Notice; Filed by Assi Security (Cross-Defendant)

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  • 06/04/2019
  • Notice of Motion and Motion by Cross-Defendant ASSI Security for Summary Adjudication of Issus; Filed by Assi Security (Cross-Defendant)

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  • 06/04/2019
  • Separate Statement; Filed by Assi Security (Cross-Defendant)

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  • 06/04/2019
  • Memorandum of Points & Authorities; Filed by Assi Security (Cross-Defendant)

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  • 06/03/2019
  • at 08:30 AM in Department B, Deirdre Hill, Presiding; Hearing on Ex Parte Application (for an Order to Specially Set Hearing Date) - Held - Motion Granted

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  • 06/03/2019
  • Order Specially Setting Hearing Date for Cross-Defendant ASSI Security's Motion for Summary Adjudication; Filed by Assi Security (Cross-Defendant)

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  • 06/03/2019
  • Minute Order ( (Hearing on Ex Parte Application for an Order to Specially Set...)); Filed by Clerk

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378 More Docket Entries
  • 09/16/2015
  • Answer; Filed by Bapko Metal Fabricators (Defendant)

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  • 09/16/2015
  • PROOF OF SERVICE OF SUMMONS

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  • 09/16/2015
  • Proof-Service/Summons; Filed by Attorney for Plaintiff/Petitioner

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  • 09/16/2015
  • Answer to Complaint; Filed by Attorney for Defendant/Respondent

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  • 09/16/2015
  • PROOF OF SERVICE OF SUMMONS

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  • 06/26/2015
  • COMPLAINT FOR DAMAGES (NEGLIGENCE)

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  • 06/26/2015
  • Complaint; Filed by JAMES GRESHAM (Plaintiff)

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  • 06/26/2015
  • SUMMONS

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  • 06/26/2015
  • Complaint

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  • 06/26/2015
  • Summons; Filed by null

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Tentative Rulings

Case Number: BC586403    Hearing Date: March 04, 2020    Dept: SWB

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. B

JAMES GRESHAM,

Plaintiff,

Case No.:

BC586403

vs.

[Tentative] RULING

MCCARTHY BUILDING COMPANIES, INC., et al.,

Defendants.

Hearing Date: March 4, 2020

Moving Parties: Cross-defendant ASSI Security

Responding Party: Cross-complainants McCarthy Building Companies, Inc., Torrance Memorial Medical Center, and Morrow-Meadows Co.

Motion for Summary Adjudication of Issues (filed on June 14, 2019)

The court considered the moving, opposition, and reply papers.

RULING

The motion for summary adjudication is GRANTED as to the 1st cause of action and DENIED as to the 5th cause of action.

BACKGROUND

On June 26, 2015, plaintiff James Gresham filed a complaint against defendants McCarthy Building Companies, Inc. Morrow-Meadows Corporation, Bapko Metal Fabricators, BCM, Boehling Construction Management, and Torrance Memorial Medical Center for negligence based on a trip and fall on December 4, 2013.

On October 11, 2016, McCarthy Building Companies, Inc., Torrance Memorial Medical Center, Morrow-Meadows Corp., BCM, Boehling Construction Management, and Bapko Metal, Inc. filed a cross-complaint against ASSI Security for (1) express indemnity, (2) complete equitable indemnity, (3) partial equitable indemnity, (4) negligence, (5) breach of contract, and (6) declaratory relief.

On May 14, 2019, the court denied cross-complainants’ motion for summary adjudication against ASSI.

LEGAL AUTHORITY

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843. “A party may move for summary adjudication as to . . . one or more issues of duty, if the party contends . . . that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. . . .” CCP 437c(f)(1).

DISCUSSION

Cross-defendant ASSI Security requests summary adjudication in favor of ASSI and against cross-complainants McCarthy Building Companies, Inc. (“McCarthy”), Torrance Memorial Medical Center (“TMMC”), and Morrow-Meadows Co. on the 1st and 5th causes of action in the cross-complaint. ASSI contends that much of the evidence offered by ASSI in connection with this motion was offered by cross-complainants in support of their motion for summary adjudication, which the court denied. ASSI acknowledges that it is using the court’s analysis from the May 2019 order.

In the complaint, plaintiff [a foreman with ASSI] alleges that prior to December 4, 2013, defendant McCarthy assigned each of the defendants and plaintiff an area in a parking lot across the street from the Torrance Memorial Medical Center to store their respective equipment overnight and when it was not in use. Defendants were aware that they were to store their equipment within, not out and around, their respective, designated storage area overnight and while said equipment was not in use. Complaint, ¶11. On December 4, 2013, defendants, through their agent, left their equipment out and around their respective, designated storage area. As a result, plaintiff had no clear path to remove equipment out of plaintiff’s storage locker’s only door, including no way to maneuver right or left, and had to move straight through forward. This was the first time in the previous four to six months that equipment had been left in front of plaintiff’s storage door. Id., ¶12. On December 4, 2013, while performing the services for which he was retained and attempting to remove his equipment from the designated storage area/locker, plaintiff tripped on defendants’ equipment [pallet] and thereby suffered significant and substantial injuries. Id., ¶13.

The cross-complaint incorporates the allegations of the complaint.

1st cause of action for express indemnity

Under the 1st cause of action for express indemnity, cross-complainants allege that cross-defendant ASSI entered into a written agreement with Morrow-Meadows. Cross-complaint, ¶9. The agreement sets forth the following provision:

35. INDEMNIFICATION. [ASSI Security] shall indemnify, defend and hold General Contractor, Owner, and all of their directors, officers, agents and employees (collectively, “Indemnities” [sic]) harmless from all losses, claims, liabilities, injuries, costs and expenses that Indemnities [sic] may incur by reason of any injury or damage or loss sustained to any person or property or entity, with respect to all Work which is covered by or incidental to this Agreement. [ASSI Security]’s duty to defend and indemnify Indemnitees shall exist even if the alleged injuries or damages or losses sustained by the claimant are the result in part of Indemnitees’ active or passive negligence, but the duty to defend and indemnify Indemnitees’ shall not extend to injuries or damages or losses that are the result of Indemnitees’ sole negligence or willful misconduct. [ASSI Security]’s duty to defend is separate and distinct from the duty to indemnify and shall immediately arise when a claim is asserted against Indemnitees in connection with the performance of [ASSI Security], or those for whom [ASSI Security] is liable, in connection with this Agreement, and regardless of whether others may owe Indemnitees a duty of defense and/or indemnity. Id. ¶10.

Cross-complainants have tendered, or do hereby tender, the defense and indemnity of this litigation to all cross-defendants. Cross-defendants have failed to comply with the contractual requirements specified in the Agreement to defend, indemnify, and hold harmless cross-complainants. Id., ¶12. Cross-complainants have undertaken defense of the matter, and they are entitled to judgment over and against cross-defendants for all sums cross-complainants incur by reason of judgment, settlement, and expense of litigation, including reasonable attorneys’ fees and costs, as provided in the agreement. Id., ¶14.

The parties do not dispute that on October 15, 2007, TMMC, as Owner, entered into a Preconstruction Services Agreement with McCarthy for the construction of a new Patient Tower. C. Patrick Peterson decl., Exh. A (2007 Preconstruction Services Agreement). On May 29, 2008, McCarthy entered into a subcontract with Morrow-Meadows, a licensed electrical contractor, to perform the electrical work on the project. Peterson decl., Exh. B (2008 McCarthy Subcontract). Morrow-Meadows subcontracted with ASSI to “[p]rovide Security Access Control System, Video Surveillance System, Duress Alarm System, and Area of Refuse System per attached MEP Buy Out Scope spreadsheet.” David Hill decl., Exh. C (2000 Master Subcontract Agreement (“2000 MSA”), Exh. D (2012 Subcontract Work Order). See cross-defendant’s Separate Statement Nos. 12-14.

“The existence and scope of duty are legal questions for the court.” Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 477. “If any party moves for summary judgment or adjudication (Code Civ. Proc., § 437c) with respect to the duty to defend against litigation still in progress, the court may proceed as it deems expedient. For example, the court may resolve legal issues then ripe for adjudication, such as whether any of the contracts at issue include a duty to defend, and, if so, whether the underlying suit or proceeding as to which a defense is sought falls within the scope of any of the parties’ contractual duty to defend.” Crawford v. Weather Shield Mfg. Inc. (2008) 44 Cal.4th 541, 565, fn. 12.

Civil Code §2278(4) requires that the indemnitor defend the indemnitee immediately, regardless of whether indemnity is actually owed. “[T]he duty to defend upon the indemnitee’s request, as set forth in subdivision 4 of section 2778, is distinct from, and broader than, the duty expressed in subdivision 3 of the statute to reimburse an indemnitee’s defense costs as part of any indemnity otherwise owed.” Crawford, supra, at 564.

ASSI argues that its duty to defend was not triggered because plaintiff did not sue ASSI or assert a claim against cross-complainants in connection with the performance of ASSI or those for whom ASSI is responsible. ASSI contends that the evidence shows that ASSI did not place the pallets in plaintiff’s path of travel. ASSI asserts that there is no evidence that anyone from ASSI other than plaintiff had any involvement in or responsibility for the accident. ASSI contend that there is no evidence that ASSI was negligent or that ASSI’s negligence contributed to the accident and injury.

Further, ASSI cites to Civil Code §2782(a), which states that “provisions, clauses, covenants, or agreements contained in, collateral to, or affecting any construction contract and that purport to indemnify the promisee against liability for damages for death or bodily injury to persons . . . arising from the sole negligence or willful misconduct of the promisee or the promisee’s agents, servants, or independent contractors who are directly responsible to the promisee . . . are against public policy and are void and unenforceable . . . .” ASSI argues that cross-complainants cannot avoid the “sole negligence” bar based on employee plaintiff’s purported comparative or contributory negligence. Thus, ASSI argues, cross-complainants are unable to show that as between them and ASSI they were not solely negligent with regard to plaintiff’s accident and injuries.

In opposition, cross-complainants argue that a triable issue of material fact exists as to whether the underlying incident was a result of the sole negligence or willful misconduct of cross-complainants, or whether ASSI’s negligence contributed to the incident. Cross-complainants also argue that triable issues of material fact exist as to whether plaintiff asserted against cross-complainants in connection with the performance of ASSI’s duties under the agreement; whether plaintiff had the authority to act on behalf of his company, as the foreman of the project; whether plaintiff’s failure to shut the job site down in the face of a known and recognized safety hazard establishes negligence by his employer and the indemnitor ASSI; whether ASSI’s conduct, or lack thereof, constitutes negligence and/or was a contributing factor to the underlying incident; whether the terms of the 2000 MSA were in force and effect at the time of the project; whether the subsequent, partially executed 2006 MSA was in full force and effect; whether a newly discovered, fully executed MSA is controlling; and whether the conduct of the parties created an implied contract that the terms and conditions of the most recent MSA governs the parties’ duties and obligations for the project at issue.

As they did in support of their motion, cross-complainants present plaintiff’s deposition testimony, where he testified that as a foreman, he had responsibility to keep the workplace safe for himself and his employees. He considered the pallets that he saw at 4:30 a.m. on the morning of his accident “to be problematic.” He thought that they might be a tripping hazard at the moment he saw them at 4:30 a.m. before he walked between to get to his storage unit. Plaintiff’s depo., 58-59. He could have shut down ASSI’s work if he felt that there was a safety issue. Id. at 61. Cross-complainants argue that the incident occurred with respect to “Work which is covered by or incidental to this Agreement.” The complaint is based upon allegations of an unsafe work area, which cross-complainant argue was under the control and purview of ASSI, plaintiff’s employer.

The cross-complainants further provide a copy of another agreement, this one dated from 2011, which cross-complainants contend is newly discovered and is the operable agreement.

Cross-complainants are attempting to create a triable issue by revealing a newer agreement, but which effectively negates or supersedes the other agreements that they sued upon in the cross-complaint.

The court finds that ASSI does not have a duty to defend under the agreements sued upon in the cross-complaint because they are not operable based on cross-complainant’s contention of a later-dated agreement. The court had previously determined that cross-complainants had not met their burden of showing an operable agreement.

The motion is GRANTED as to the 1st cause of action.

5th cause of action for breach of contract

Under the 5th cause of action for breach of contract, cross-complainants allege that the written agreement between Morrow-Meadows and cross-defendants was entered into, in part, for the benefit of third parties, McCarthy, Bapko, BCM, and TMMC, all of whom had a real and/or financial interest in the construction of the project, including the physical location of plaintiff’s alleged incident. In addition, cross-defendants agreed to perform in accordance with the provisions of written contracts between the other cross-complainants, and that their interests are expressly provided for and protected by the agreement by para. 31. The agreement required cross-defendants to purchase and maintain adequate liability insurance to cover property damages and bodily injury claims, and to obtain additional insured endorsements naming cross-complainants as additional insureds. Id., ¶32. The agreement also requires cross-defendants to “indemnify, defend and hold . . . harmless” cross-complainants. Id., ¶33. The agreement requires cross-defendants to prevent accidents to workmen engaged upon or in the vicinity of its work. Cross-defendants also agreed to stop any part of work which was unsafe until corrective measures had been taken. Id., ¶34. The agreement further required all cross-defendants’ accident reports to be submitted to Morrow-Meadows, Corp. within 24 hours of an accident. Id., ¶35. Cross-defendants have breached the agreement by a. Failing to acquire or making an inadequate and/or untimely acquisition of insurance providing coverage for cross-complainants as additional insureds; b. Failing to obtain the agreed upon additional insured endorsements issued in favor of cross-complainants on liability policies issued to cross-defendants; c. Failing to acquire and/or supply the proper certificates of insurance; d. Failing and refusing to indemnify, defend and hold harmless cross-complainants pursuant to an express obligation to do so; e. Failing to prevent workplace accidents; and f. Failing to properly report plaintiff’s incident and injury that is the subject of plaintiff’s complaint. Id., ¶38.

This cause of action encompasses several other breaches other than breach of a duty to defend. The motion is DENIED as to the 5th cause of action.

Cross-defendant ASSI is ordered to give notice of this ruling.

Case Number: BC586403    Hearing Date: February 21, 2020    Dept: SWB

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. B

JAMES GRESHAM,

Plaintiff,

Case No.:

BC586403

vs.

[Tentative] RULING

MCCARTHY BUILDING COMPANIES INC., et al.,

Defendants.

Hearing Date: February 21, 2020

Moving Parties: Cross-defendant ASSI Security

Responding Party: None

Motion for Leave to File First Amended Answer to Cross-Complaint

The court considered the moving papers. No opposition was filed.

RULING

The motion is GRANTED. Cross-defendant is ordered to file its First Amended Answer within five days.

BACKGROUND

On June 26, 2015, plaintiff James Gresham filed a complaint against defendants McCarthy Building Companies, Inc. Morrow-Meadows Corporation, Bapko Metal Fabricators, BCM, Boehling Construction Management, and Torrance Memorial Medical Center for negligence based on a trip and fall on December 4, 2013.

On October 11, 2016, McCarthy Building Companies, Inc., Torrance Memorial Medical Center, Morrow-Meadows Corp., BCM, Boehling Construction Management, and Bapko Metal, Inc. filed a cross-complaint against ASSI Security for (1) express indemnity, (2) complete equitable indemnity, (3) partial equitable indemnity, (4) negligence, (5) breach of contract, and (6) declaratory relief.

LEGAL AUTHORITY

CCP § 473(a)(1) provides, in relevant part: “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.”

“This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.” Kittredge Sports Co. v. Superior Court (1989) 213 Cal. App. 3d 1045, 1047.

Under CRC Rule 3.1324(a), a motion to amend a pleading shall (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.

Under CRC Rule 3.1324(b), a separate declaration must accompany the motion and must specify (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made earlier.

Even if a good amendment is proposed in proper form, a long, unwarranted and unexcused delay in presenting it may be a good reason for denial. In most cases, the factors for timeliness are: (1) lack of diligence in discovering the facts or in offering the amendment after knowledge of them; and (2) the effect of the delay on the adverse party. If the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the judge has discretion to deny leave to amend. Hirsa v. Superior Court (1981) 118 Cal. App. 3d 486, 490. Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, or added costs of preparation such as an increased burden of discovery. Magpali v. Farmers Group, Inc. (1996) 48 Cal. App. 4th 471, 486-488.

DISCUSSION

Cross-defendant ASSI Security requests leave to file an amended answer to the cross-complaint to add as a defense that the Worker’s Compensation Act is an exclusive remedy.

Cross-defendant explains that it retained new co-counsel on January 24, 2020, and in reviewing the file and pleadings, it came to the attention of counsel that the answer failed to plead the Worker’s Compensation Act exclusivity. Cross-defendant explains that it is the employer of plaintiff.

The motion complies with CRC Rule 3.1324. In light of the liberal policy in allowing amendment, the motion is GRANTED.

Cross-defendant is ordered to give notice of this ruling.