MICHAEL RESENDEZ ET AL VS THYSSENKRUPP ELEVATOR CORPORATION

Tentative Rulings

Case Number: BC627703    Hearing Date: November 06, 2019    Dept: 4A

Case Number: BC627703    Hearing Date: October 25, 2019    Dept: 4A

Motion for Leave to File First Amended Cross-complaint

Having considered the moving, opposition, and reply papers, the Court rules as follows.

BACKGROUND

On July 19, 2016, Plaintiffs Michael Resendez and Edgard Garcia filed a complaint against Defendant ThyssenKrupp Elevator Corporation and Does 1-50, alleging general negligence in connection with an elevator incident at the Superior Court of California Compton courthouse. After two bailiffs on duty entered into an elevator at the courthouse and pressed the button to change floors, the elevator dropped into free-fall for multiple floors and then abruptly stopped.

On October 7, 2016, Defendant/Cross-complainant ThyssenKrupp Elevator Corporation filed a cross-complaint against Roes 1-20 and filed a first amended cross-complaint on November 4, 2016.

On May 22, 2017, Plaintiff-in-Intervention County of Los Angeles filed a complaint-in-intervention against Defendant/Cross-complainant/Defendant-in-Intervention ThyssenKrupp Elevator Corporation asserting claims of subrogation under Labor Code section 3852.

In March 2018, Plaintiff substituted Defendant ABM, Mitsubishi Elevators and Escalators, and Mitsubishi Electric US, Inc. as Does 1-3, respectively.

On April 16, 2018, Defendant ABM filed an answer and a cross-complaint against Defendants Thyssenkrupp Elevator Corp., Mitsubishi Electric US, Inc., and ROES 1 through 20, for (1) equitable indemnity, (2) apportionment of fault, (3) declaratory relief, and (4) comparative indemnity.

On May 4, 2018, Defendant Mitsubishi Electric US, Inc. filed a cross-complaint against Roes 1-100 for implied indemnity, contribution and declaratory relief.

On September 26, 2019, Defendant/Cross-complainant ABM filed this motion for leave to file a first amended cross-complaint. On October 11, 2019, Defendant/Cross-defendant Thyssenkrupp filed an opposition. On October 18, 2019, Defendant/Cross-complainant ABM filed a reply.

PARTY’S REQUEST

Defendant/Cross-complainant ABM moves for leave to file a first amended cross-complaint. The amended cross-complaint would add causes of action for (5) express indemnity, (6) declaratory relief re duty to defend, (7) declaratory relief re duty to indemnify, and (8) declaratory relief re contractual duties and obligations.

LEGAL STANDARD

The court may, in its discretion and after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading, including adding or striking out the name of any party, or correcting a mistake in the name of a party, or a mistake in any other respect. (Code Civ. Proc., § 473, subd. (a)(1).) “Public policy dictates that leave to amend be liberally granted.” (Centex Homes v. St. Paul Fire & Marine Ins. Co. (2015) 237 Cal.App.4th 23, 32.) “Although 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 . . . this policy should be applied only ‘where no prejudice is shown to the adverse party.’ [Citation]. A different result is indicated ‘where inexcusable delay and probable prejudice to the opposing party’ is shown. [Citation.]” (Magpali v. Farmers Group, Inc. (1996) 47 Cal.App.4th 1024, 487.)

A motion to amend a pleading must include a copy of the proposed amendment or amended pleading which must be serially numbered to differentiate it from previous pleadings or amendments and must state what allegations in the previous pleading are proposed to be deleted or added, if any, and where, by page, paragraph, and line number, the allegations are located. (Cal. Rules of Court, Rule 3.1324(a).) The motion shall also be accompanied by a declaration attesting to the effect of the amendment, why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and why the request for amendment was not made earlier. (Cal. Rules of Court, Rule 3.1324(b).)

DISCUSSION

Initially, the Court overrules Thyssenkrupp’s evidentiary objections (Nos. 1-7) to the declaration of Eric J. Wayne filed in support of the motion. The declaration is a proper statement from counsel as required under California Rules of Court, Rule 3.1324(b).

The parties dispute whether ABM complied with the procedural requirements of Cal. Rules of Court, rules 3.1324(a) and (b). The court determines that ABM complied with rule 3.1324(a) because it provided a copy of the proposed amendment or amended pleading which must be serially numbered to differentiate it from previous pleadings or amendments and the in the previous pleading are proposed to be deleted or added, if any, and where, by page, paragraph, and line number, the allegations are located. (Wayne Decl. ¶¶ 3, 4, Exh. 1.) The court also determines that ABM substantially complied with rule 3.1324(b) because it provided a declaration attesting to the effect of the amendment, why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and why the request for amendment was not made earlier. (Wayne Decl. ¶¶ 5, 10-12.)

Accordingly, the court finds that ABM substantially complied with the procedural requirements for moving to amend a pleading.

Next, the Court considers the merits regarding ABM’s delay, any prejudice to Thyssenkrupp, and the substantive viability of ABM’s amendments.

The evidence shows that ABM presented this amendment after a long, unexplained delay. “[E]ven if a good amendment is proposed in proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial.” (Huff v. Wilkins (2006) 138 Cal.App.4th 732, 746.) Here, ABM learned of the pertinent Purchase Order No.3/Change Order on March 5, 2018. (Wayne Decl. ¶ 11.) ABM contends that the Change Order and other written agreements between ABM and Thyssenkrupp show that Thyssenkrupp is obligated to expressly indemnify ABM in connection with the incident.

On September 3, 2019, ABM emailed a proposed stipulation to allow filing the first amended cross-complaint (FACC). (Wayne Decl. ¶ 13.) When ThyssenKrupp declined to stipulate, ABM filed this motion on September 26, 2019. The foregoing shows an 18-month delay between learning of the Change Order and presenting a stipulation to file the proposed pleading. The explanation for the delay is “Counsel for ABM was working with Plaintiffs to attempt to informally resolve this matter; however, was unable to do so necessitating moving forward with this amended pleading.” (Wayne Decl. ¶ 12.) This explanation is insufficient to justify an 18-month delay. Thus, the Court finds that there is an unwarranted delay in presenting the amendment.

Thyssenkrupp contends it would be unfairly prejudiced by the amendment because it would be deprived of the opportunity to move for summary judgment on the amended pleading. There is unfair prejudice when an amendment deprives the opposing party to move for summary judgment against the pleading. (See Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 176.) Here, under the current schedule, it would be procedurally impossible for Thyssenkrupp to move for summary judgment on the FACC if it were filed. Seventy-five days from October 25, 2019 is January 8, 2020. Trial is set for January 24, 2020. Thus, even if Thyssenkrupp filed a motion for summary judgment on the date of this motion’s hearing, it would still not comply with the rules that any summary judgment motion must be filed with 75 days’ notice and heard 30 days before the date of trial. (Code Civ. Proc., § 437c(a)(2) & (3).)

In reply, ABM contends that “[t]here is no authority stating that a motion for leave to amend a pleading including a Cross-Complaint could or should be denied simply because the amended pleading expands the scope of litigation.” (Reply, 3:2-3.) But that proposition is not at issue here. Instead, the issue is whether leave to amend should be denied based on unfair prejudice where permitting the amendment would make a motion for summary judgment procedurally impossible. ABM fails to rebut this proposition. Based on the foregoing, the Court finds Thyssenkrupp would suffer unfair prejudice from the granting of this motion.

The Court next turns to the viability of ABM’s proposed amendment. ABM’s new theory of liability is that the written terms of the parties’ Master Service Agreement, the Change Order No. 3, and Certificate of Liability Insurance give Thyssenkrupp a contractual obligation to defend and indemnify ABM. (Wayne Decl. ¶ 5.) ABM contends the Change Order No. 3, which they learned of on March 5, 2018, was issued to Thyssenkrupp on November 10, 2015. (Wayne Decl. ¶ 10.) The incident occurred on November 13, 2015. (Wayne Decl. ¶ 6.) In opposition, Thyssenkrupp contends it signed the Change Order No. 3 on November 17, 2015. (Opp. 5:20.) A review of the document shows this to be true. (Wayne Decl., Exh. 1 [proposed FACC], Exh. B [Change Order #3], p. 6 [Thyssenkrupp’s signature dated November 17, 2015].)

Where no liability exists under the proposed amendment, the motion to amend may be denied. (Huff v. Wilkins, supra, 138 Cal.App.4th at 746 [citing Edwards v. Superior Court (2001) 93 Cal.App.4th 172, 180].) “If a proposal prescribes any conditions concerning the communication of its acceptance, the proposer is not bound unless they are conformed to….” (Civ. Code, § 1582.) Here, the Change Order provided a place for each party’s signature, thus it appears communication of acceptance was conditioned on signing the Change Order. Thyssenkrupp contends it entered into the contract after the incident. Thus, it argues that there is no liability based on the Change Order because it was not in effect at the time of the incident. ABM’s reply does not address this issue. Accordingly, the Court finds that the proposed amendment would not add any substantive liability because the Change Order #3 was entered into after the alleged incident. For this reason, the request to amend should be denied.

Based on the foregoing, the motion for leave to amend is DENIED because both inexcusable delay and probable prejudice to the opposing party is shown. While the Court also finds that the proposed amendment would not add any substantive liability, it is unnecessary for the Court to rely on this finding in light of its findings of delay and prejudice.

Defendant/Cross-complainant ABM is ordered to provide notice of this order.