MWSK PROPERTIES, LLC VS SOUTH BAY MONTESSORI SCHOOL

Tentative Rulings

Case Number: ****2578 Hearing Date: February 1, 2022 Dept: M

Superior Court of California County of Los Angeles Southwest District Torrance Dept. M
MWSK PROPERTIES, LLC,	Plaintiff,	Case No.:	****2578
vs.		[Tentative] RULING
SOUTH BAY MONTESSORI SCHOOL,	Defendant.

Hearing Date: February 1, 2022

Moving Parties: Defendant Mary Mellone

Responding Party: Plaintiff MWSK Properties, LLC

Motion to Strike Doe Amendment to Add Mary Mellone as a Defendant

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

RULING

The motion to strike is GRANTED. The Doe amendment filed on September 17, 2021 is STRICKEN.

BACKGROUND

On January 2, 2018, plaintiff MWSK Properties, LLC filed a complaint against defendant South Bay Montessori School for (1) declaratory and injunctive relief and (2) nuisance. Plaintiff alleges that it is the owner of real property located at 23112 Hawthorne Blvd., Torrance. Defendant is the owner or leaseholder of 23104 Hawthorne Blvd., Torrance. Plaintiff’s property is a commercial lot. There is approximately 10,000 square feet of ground floor space utilized for retail and office space on the lot (“23112 Building”). The 23104 property is immediately adjacent and north of plaintiff’s 23112 property. Between January 2013 and September 2016, defendant made improvements to the 23104 property. From the time defendant completed the 23104 improvements until the present the 23112 building has experienced significant water intrusion. In making its improvements, defendant has failed to provide for appropriate collection and run-offs from the 23104 property and in doing so has caused significant water intrusion and water damage to the 23112 property and building. Plaintiff has been unable to lease out space within the 23112 building and has losses and lost profits stemming from the water damage.

On June 28, 2018, defendant South Bay Montessori filed a cross-complaint against Gluck Development Company, Inc. and Associated Design Services, Inc. dba Gunderlock & Son Construction for (1) implied equitable indemnity, (2) contribution, and (3) declaratory relief.

On January 11, 2019, Gluck Development Company, Inc. filed a cross-complaint against Moes 1 to 5 for (1) equitable indemnity, (2) contribution and equitable apportionment, and (3) declaratory relief.

On April 19, 2019, Gluck filed an amendment designating Moe 1 as Associated Design Services, Inc. dba Gunderlock & Son Construction, Moe 2 as PMC Engineering, Inc., Moe 3 Obelisk Architects, Moe 4 as B.A. Sims Engineering, Inc., Moe 5 as Bennett Enterprises, and Moe 6 as Construction Problems Resolution, Inc.

On June 6, 2019, Construction Problems Resolution filed a cross-complaint against Zoes 1-30 for indemnity, declaratory relief, and contribution.

On November 15, 2019, PMC Engineering, Inc. filed a cross-complaint for indemnity, declaratory relief, and contribution.

On March 10, 2020, PMC filed an amendment designating Moe 1 as Obelisk Architects, Moe 2 as B.A. Sims Engineering, Inc., Moe 3 as Pacific Coast Structural Engineering, LLC, Moe 4 as T&M Projects, Inc., and Moe 5 as Norcal Engineering.

On March 25, 2020, PMC Engineering, Inc. filed a request for dismissal without prejudice as to Pacific Coast Structural Engineering, LLC. The dismissal was entered on the same date. Also, on the same date, PMC Engineering, Inc. filed an amendment to cross-complaint designating Moe 6 as Pacific Coast Structural Engineering, Inc.

On June 24, 2020, T&M Projects dba T&M Construction filed a cross-complaint against Moes 1 to 200 for equitable/implied indemnity, apportionment and contribution, and declaratory relief.

On June 25, 2020, the court granted Construction Problems Resolution, Inc.’s Motion for

Determination of Good Faith Settlement.

On June 30, 2020, MWSK Properties, LLC filed a FAC.

On July 17, 2020, Construction Problems Resolution, Inc. dismissed its cross-complaint.

On September 17, 2020, the court granted South Bay Montessori School’s motion for leave to amend cross-complaint.

On September 25, 2020, plaintiff filed a SAC.

On October 2, 2020, South Bay Montessori School filed a FACC for (1) implied equitable indemnity, (2) contribution, (3) declaratory relief, and (4) third party beneficiary breach of contract.

On July 2, 2021, the court overruled cross-defendant Mary Mellone’s demurrer to cross-complainant Project Management Collaborative’s SACC.

On September 17, 2021, plaintiff MWSK Properties filed a Doe amendment to its SAC designating Mary Mellone as Doe 1.

LEGAL AUTHORITY

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. CCP 436(a). The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. CCP 436(b). The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. CCP 436. The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. CCP 437.

DISCUSSION

Defendant Mary Mellone requests that the court strike (or quash) the Doe amendment designating her Doe 1 as to the SAC.

A defendant may serve and file a notice of motion to quash service of summons on the ground of lack of jurisdiction of the court over him or her. CCP 418.10(a). CCP 418.10 provides the exclusive procedure for challenging personal jurisdiction at the outset. Roy v. Superior Court (2005) 127 Cal. App. 4th 337, 342. Although defendant is the moving party, the burden of proof is on plaintiff to defeat the motion by establishing that jurisdictional grounds exist. Mihlon v. Superior Court (1985) 169 Cal. App. 3d 703, 710.

“The general rule is that an amended complaint that adds a new defendant does not relate back to the date of filing the original complaint and the statute of limitations is applied as of the date the amended complaint is filed, not the date the original complaint is filed. A recognized exception to the general rule is the substitution under section 474 of a new defendant for a fictitious Doe defendant named in the original complaint as to whom a cause of action was stated in the original complaint. If the requirements of section 474 are satisfied, the amended complaint substituting a new defendant for a fictitious Doe defendant filed after the statute of limitations has expired is deemed filed as of the date the original complaint was filed.” Woo v. Superior Court (1999) 75 Cal. App. 4th 169, 176.

“Among the requirements for application of the section 474 relation back doctrine is that the new defendant in an amended complaint be substituted for an existing fictitious Doe defendant named in the original complaint.” Id. “A further and nonprocedural requirement for application of the section 474 relation-back doctrine is that [Plaintiff] must have been genuinely ignorant of [Defendant Doe’s] identity at the time she filed her original complaint. The omission of the defendant’s identity in the original complaint must be real and not merely a subterfuge for avoiding the requirements of section 474. Furthermore, if the identity ignorance requirement of section 474 is not met, a new defendant may not be added after the statute of limitations has expired even if the new defendant cannot establish prejudice resulting from the delay. However, if the plaintiff is actually ignorant of the defendant’s identity, the section 474 relation-back doctrine applies even if that ignorance is the result of the plaintiff's negligence.” Id. at 177. See also Optical Surplus, Inc. v. Superior Court (1991) 228 Cal. App. 3d 776, 779-82.

“Ignorance of the facts giving rise to a cause of action, like ignorance of the true name, should be real and not feigned.” Scherer v. Mark (1976) 64 Cal. App. 3d 834, 841. “’Ignorance’ has been repeatedly interpreted to mean that plaintiff must be unaware of defendant’s identity or unaware of the defendant’s potential culpability.” Marasco v. Wadsworth (1978) 21 Cal. 3d 82, 88.

“Even a person whose identity was known to the plaintiff when the action was filed may be brought in under section 474 as a ‘Doe’ defendant if the plaintiff was initially unaware of that person’s true relationship to the injuries upon which the action was based.” Miller v. Thomas (1981) 121 Cal. App. 3d 440, 444-45. “’Section 474 allows a plaintiff in good faith to delay suing particular persons as named defendants until he has knowledge of sufficient facts to cause a reasonable person to believe liability is probable.’ ‘The fact that the plaintiff had the means to obtain knowledge is irrelevant.’ ‘In short, section 474 does not impose upon the plaintiff a duty to go in search of facts she does not actually have at the time she files her original pleading.’” McGowen v. Grossman (2007) 153 Cal. App. 4th 937, 943-44.

“If the terms of . . . section 474 have not been complied with, the purported defendant has not been named as such in the complaint. A service upon one not named in a complaint does not confer jurisdiction to proceed upon the complaint against him, and a motion to quash is proper.” McClatchy v. Cobletz, Patch, Duffy & Bass, LLP (2016) 247 Cal. App. 4th 368, 375.

Defendant argues that plaintiff cannot meet the criteria for a Doe amendment under CCP 474 as it was not genuinely ignorant of Mellone as a potential defendant at the time the complaint was filed on January 2, 2018. Defendant contends that MWSK was well aware of Mellone and her relationship to the school prior to filing the lawsuit and “had been at odds with her for years earlier, both over the original construction of the School and thereafter the claimed water intrusion issues.” Defendant cites to a 2012 letter submitted by an attorney of the owner of the MWSK property to the City of Torrance Planning Commission about the conditional use permit listing “Mary Mellone” as the applicant and “property owner.” Defendant also shows that plaintiff’s PMK testified about extensive pre-lawsuit communications directly with Mellone regarding the water intrusion issues.

Defendant also argues that plaintiff unreasonably delayed in seeking to add Mellone as a defendant because it waited more than three years to file the Doe amendment.

Defendant further argues that she was not served within three years of the complaint in violation of CCP 583.210. See also GM Corp. v. Superior Court (1996) 48 Cal. App. 4^th 580, 589 n.10 (“once one defendant is sued, all fictitiously named defendants must be brought in within a maximum period of three years—because summons must be returned within three years of its issuance.”). Defendant contends that plaintiff filed the original complaint on January 2, 2018 and had until January 2, 2021 to identify and serve any properly named Doe defendants. Plaintiff did not serve defendant until November 5, 2021.

Defendant also argues that she has been severely prejudiced by plaintiff’s unreasonable delay in filing the Doe amendment as an extensive amount of discovery has already occurred and anticipates that she will need to serve multiple sets of written discovery and to depose multiple witnesses.

Further, defendant argues, plaintiff cannot amend its SAC without leave of court under CCP 472.

In response, plaintiff argues that although it knew defendant’s actual identity, plaintiff was ignorant because it lacked knowledge of Mellone’s connection with plaintiff’s injuries until plaintiff took the deposition of Randall Lim on May 7, 2021, who performed water intrusion consulting services for Mellone and South Bay starting in 2014. Plaintiff asserts that “[a]fter the Lim deposition confirming the problems that had not been addressed and which affected Plaintiff’s property, the connection between those problems and Plaintiff’s damages, and that Lim and Mary Mellone had worked closely, Plaintiff took action to add Mary Mellone as a Doe defendant.”

In reply, defendant points out that plaintiff “made no effort to dispute four critical and straightforward arguments.”

The court finds that plaintiff was not genuinely ignorant as to Mellone’s identity or unaware of defendant’s potential culpability when the complaint was filed. Further, plaintiff did not serve Mellone within three years of filing the complaint in violation of CCP 583.210.

The motion is thus GRANTED.

Defendant is ordered to give notice of ruling.

Case Number: ****2578    Hearing Date: December 10, 2020    Dept: M

Superior Court of California County of Los Angeles Southwest District Torrance Dept. M
MWSK PROPERTIES, LLC,	Plaintiff,	Case No.:	****2578
vs.		[Tentative] RULING
SOUTH BAY MONTESSORI SCHOOL,	Defendant.

Hearing Date: December 10, 2020

Moving Parties: Cross-defendant Associated Design Services Inc., dba Gunderlock & Son Construction

Responding Party: Cross-complainant South Bay Montessori School

Demurrer to FACC

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

RULING

The demurrer is OVERRULED as to the 4^th cause of action.

BACKGROUND

On January 2, 2018, plaintiff MWSK Properties, LLC filed a complaint against defendant South Bay Montessori School for (1) declaratory and injunctive relief and (2) nuisance. Plaintiff alleges that it is the owner of real property located at 23112 Hawthorne Blvd., Torrance. Defendant is the owner or leaseholder of 23104 Hawthorne Blvd., Torrance. Plaintiff’s property is a commercial lot. There is approximately 10,000 square feet of ground floor space utilized for retail and office space on the lot (“23112 Building”). The 23104 property is immediately adjacent and north of plaintiff’s 23112 property. Between January 2013 and September 2016, defendant made improvements to the 23104 property. From the time defendant completed the 23104 improvements until the present the 23112 building has experienced significant water intrusion. In making its improvements, defendant has failed to provide for appropriate collection and run-offs from the 23104 property and in doing so has caused significant water intrusion and water damage to the 23112 property and building. Plaintiff has been unable to lease out space within the 23112 building and has losses and lost profits stemming from the water damage.

On June 28, 2018, defendant South Bay Montessori filed a cross-complaint against Gluck Development Company, Inc. and Associated Design Services, Inc. dba Gunderlock & Son Construction for (1) implied equitable indemnity, (2) contribution, and (3) declaratory relief.

On January 11, 2019, Gluck Development Company, Inc. filed a cross-complaint against Moes 1 to 5 for (1) equitable indemnity, (2) contribution and equitable apportionment, and (3) declaratory relief.

On April 19, 2019, Gluck filed an amendment designating Moe 1 as Associated Design Services, Inc. dba Gunderlock & Son Construction, Moe 2 as PMC Engineering, Inc., Moe 3 Obelisk Architects, Moe 4 as B.A. Sims Engineering, Inc., Moe 5 as Bennett Enterprises, and Moe 6 as Construction Problems Resolution, Inc.

On June 6, 2019, Construction Problems Resolution filed a cross-complaint against Zoes 1-30 for indemnity, declaratory relief, and contribution.

On November 15, 2019, PMC Engineering, Inc. filed a cross-complaint for indemnity, declaratory relief, and contribution.

On March 10, 2020, PMC filed an amendment designating Moe 1 as Obelisk Architects, Moe 2 as B.A. Sims Engineering, Inc., Moe 3 as Pacific Coast Structural Engineering, LLC, Moe 4 as T&M Projects, Inc., and Moe 5 as Norcal Engineering.

On September 17, 2020, the court granted South Bay Montessori School’s motion for leave to amend cross-complaint.

On September 25, 2020, plaintiff filed a SAC.

On October 2, 2020, South Bay Montessori School filed a FACC for (1) implied equitable indemnity, (2) contribution, (3) declaratory relief, and (4) third party beneficiary breach of contract.

LEGAL AUTHORITY

When considering demurrers, courts read the allegations liberally and in context. Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228. “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905. “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.

DISCUSSION

Cross-defendant Associated Design Services Inc., dba Gunderlock & Son Construction

Pacific Coast Structural Engineering, Inc. (“Gunderlock”) demurs to the 4^th cause of action in the FACC on the grounds that it fails to state sufficient facts to constitute a cause of action, cross-complainant lacks standing, and it is uncertain.

In the FACC, cross-complainant/defendant alleges that as a result of plaintiff’s claims, on June 28, 2018, defendant tendered its defense and indemnity to Gunderlock. As a result of plaintiff’s claims, cross-complainant has been forced to retain counsel and defend itself against plaintiff’s allegations.

Under the 4^th cause of action for breach of contract, the FACC alleges that cross-defendants entered into oral and/or written contracts with the owner of the property where the South Bay Montessori School is located, for the purpose of completing the work and/or construction activity on the project of which plaintiff now complains within the operative complaint. FACC, ¶36. Cross-defendants agreed and warranted that their work would be performed in a reasonable, workmanlike manner and that it would be free from defects. Id., ¶37. At the time cross-defendants entered into their agreements, each knew that they were performing their work for the express and immediate benefit of cross-complainant and, as such, cross-complainant was the third-party beneficiary of the foregoing subcontracts under the principles set forth in Gilbert Fin. Corp. v. Steelwork Contracting Co. (1978) 82 Cal. App. 3d 65 and Loduc v. Polyzos (2007) 154 Cal. App. 4^th 334. Id., ¶38. Cross-defendants acted as contractors with respect to the construction activities on the project. Id., ¶39. Cross-complainant has performed all conditions, covenants, and promises required of it under the agreements, except for those excused by the conduct of cross-defendants. Id., ¶40.

Cross-complainant further alleges that should plaintiff succeed on its claims, cross-defendants have breached their respective obligations under their agreements by, inter alia, failing to/negligently perform their underlying work or services, failing to perform their work without defects and in conformity with the applicable standards or practices, the approved construction drawings, warranties, plans and specifications and /or applicable building codes thereby resulting in damages and injuries complained of by plaintiff. Id., ¶41.

Cross-defendant asserts that South Bay Montessori School’s sole principle, Mary Mellone, released all of its claims against Gunderlock in a prior action under a settlement agreement. Gunderlock argues that Mellone is now attempting to use the South Bay Montessori School—a dba of another company she owns—to circumvent a release notwithstanding the fact that Mellone, the real party in interest, was already paid ample consideration.

Further, cross-defendant explains that cross-complaint has not sufficiently pled that the contact was made expressly for its benefit. Under Civil Code ;1559, “[a] contract, made expressly for the benefit of a third person, may be enforced by him [or her] at any time before the parties thereto rescind it.”

Cross-defendant points out that the cause of action relies on an AIA contract attached to the FACC and made up of two parts. The Standard Form AIA Agreement is signed by Gunderlock and identifies Mellone as the owner of the subject property and as the contracting party. The AIA “General Condition” is not signed or initialed by Gunderlock, and Gunderlock does not appear anywhere on those pages. Cross-complainant identifies itself as a dba of AJDC Inc. and the business that operates the Montessori school. Cross-defendant asserts that there is no reference to South Bay Montessori School as an entity and it did not exist as a dba until 2019. See RJN No. 1. Cross-defendant also argues that AJDC Inc. does not appear anywhere on the Standard Form initialed by Gunderlock. Cross-defendant contends that the reference to AJDC as “owner” in the General Conditions is in conflict with the Standard Form which identifies Mellone as the owner. See also RJN No. 2 (chain of title identifying Mellone as the owner).

In opposition, cross-complainant argues that the allegations are sufficient and that it has properly pled all the elements of a third-party beneficiary breach of contract. Further, it contends that it was created as a legal entity more than two years before the Gunderlock contract and that the agreement identifies the School as the “project” for which the work is being performed.

The court finds that the allegations are sufficient to plead the elements of breach of contract, including that cross-complainant is an intended beneficiary. The contract at issue on the front page identifies the Project as “South Bay Montessori School.” “South Bay Montessori” is referenced throughout.

The demurrer is OVERRULED as to the 4^th cause of action.

Cross-complainant is ordered to give notice of the ruling.

Superior Court of California County of Los Angeles Southwest District Torrance Dept. M
MWSK PROPERTIES, LLC,	Plaintiff,	Case No.:	****2578
vs.		[Tentative] RULING
SOUTH BAY MONTESSORI SCHOOL,	Defendant.

Hearing Date: December 10, 2020

Moving Parties: Defendant South Bay Montessori School

Responding Party:      Plaintiff MWSK Properties, LLC

Motion to Strike Portions of SAC

RULING

The motion is DENIED as to paras. 20:14-19 except for “intentionally and recklessly,” 22:7-9, 22:10-12, 23:13-16 except for “intentionally and recklessly” as the court declines to take judicial notice of the facts stated in the CPRI report attached as an exhibit in support of CPRI’s motion for determination of good faith settlement, as well as any purported facts not stated.

BACKGROUND

LEGAL AUTHORITY

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.  CCP ; 436(a).  The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.  CCP ; 436(b).  The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws.  CCP ; 436.  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.  CCP ; 437.

Civil Code ; 3294 authorizes the recovery of punitive damages in non-contract cases where “the defendant has been guilty of oppression, fraud, or malice . . . .”  The Court in Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95, found that “[s]omething more than the mere commission of a tort is always required for punitive damages.  There must be circumstances of aggravation or outrage, such as spite or ‘malice,’ or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton.”

“’Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.”  Civil Code ; 3294(c)(1). 

As the Court noted in College Hospital v. Superior Court (1994) 8 Cal.4th 704, 713, Section 3294 was amended in 1987 to require that, where malice is based on a defendant’s conscious disregard of a plaintiff’s rights, the conduct must be both despicable and willful.  The Court in College Hospital held further that “despicable conduct refers to circumstances that are base, vile, or contemptible.”  Id. at 725 (citation omitted).

DISCUSSION

Plaintiff further alleges that in the course of undertaking the improvements, defendant, through its authorized representatives and construction personnel, wrongfully, intentionally, and recklessly, and without notice to and obtaining permission and consent from plaintiff, removed the curb extending along the entire backside of plaintiff’s building, with full knowledge that the purpose of the curb was to prevent water intrusion onto plaintiff’s property from defendant’s property.  Defendant also intentionally and recklessly demolished and removed portions of the foundations at the rear of plaintiff’s building.  In erecting the Concrete Masonry Unit (“CMU”) wall, defendant poured concrete as part of the foundation, which permanently and encroaches upon plaintiff’s property.  Defendant also intentionally and recklessly shored the CMU wall with rebar and/or other attachments to plaintiff’s building without notice to or consent from plaintiff.  Id., ¶20.

Plaintiff further alleges that in the course of the improvements, defendant retained Construction Problems Resolution, Inc. (“CPRI”) for analysis and advice about the CMU wall.  Id., ¶21.  On April 21, 2014, CPRI delivered a written report to defendant.  The report advised that there are structural and waterproofing problems with the CMU wall, as constructed, that encroach on plaintiff’s property and building.  The report advised that the way to correct the problems with the CMU wall is to demolish it and undertake correct reconstruction.  The report also advised that three other walls erected were also defective.  Id., ¶22.  Despite the clear written advice by CPRI retained by defendant, defendant intentionally and recklessly ignored that advice, and did nothing.  As evidence of defendant’s wanton disregard of the rights and safety of plaintiff with respect to the CMU wall on the southern perimeter, defendant followed CPRI’s advice and demolished the defective walls on the east, north, and west boundaries of the property.  It is inexplicable why defendant intentionally ignored CPRI’s advice to similarly demolish the CMU wall.  Id., ¶23.

Plaintiff also alleges that as further evidence of defendant’s willful and wanton conduct is its actions with B.A. Sims Engineering, Inc. (“Sims”).  Sims was engaged to prepare engineering plans.  Sims was directed by defendant to omit the CMU wall from its engineering planning and advice to defendant.  There can be no explanation for defendant’s intentional conduct in directing Sims to ignore the CMU wall other than a reckless disregard for the rights and safety of plaintiff and others.  Id., ¶24.

Defendant argues that the allegations are conclusory, false, and insufficient to support punitive damages.  As to the allegations regarding the CPRI report (see 20:14-19, 22:7-9, 22:10-12, 23:13-16), defendant requests that the court take judicial notice of it, and argues that a review of the report reveals that the allegation is demonstrably false.  The four-page report makes no reference to any water intrusion, encroachment, or even mention plaintiff’s property.  Further, defendant contends, it was not even addressed or copied to defendant school, and thus the allegation is insufficient that defendant was aware of it.  Defendant also argues that plaintiff confuses and mischaracterizes the “curb” on the school’s property.  Defendant further argues that the new allegations do nothing to provide the required factual support for a punitive damage claim. 

The court finds that the allegations are insufficient to show malice, oppression, or fraud to support a claim for punitive damages.  “Punitive damages are appropriate if the defendant’s acts are reprehensible, fraudulent or in blatant violation of law and policy.  The mere carelessness or ignorance of the defendant does not justify the imposition of punitive damages. . . . Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.”  Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal. App. 3d 1149, 1154.  Plaintiff has not alleged such conduct. 

The motion is GRANTED WITHOUT LEAVE TO AMEND as to paras. 13, 20:15 (“intentionally and recklessly”), 20:25 (“intentionally and recklessly”), 23:15 (“intentionally and recklessly”), 23:16-17 (“wanton disregard of the rights and safety of plaintiff and others”), 24:27-28 (“reckless disregard for the rights and safety of Plaintiff and others”), and prayer for punitive and exemplary damages.  The motion is DENIED as to paras. 20:14-19 except for “intentionally and recklessly,” 22:7-9, 22:10-12, 23:13-16 except for “intentionally and recklessly” as the court declines to take judicial notice of the facts stated in the CPRI report attached as an exhibit in support of CPRI’s motion for determination of good faith settlement, as well as any purported facts not stated.

Moving defendant is ordered to give notice of the ruling.

Case Number: ****2578    Hearing Date: September 17, 2020    Dept: M

Superior Court of California County of Los Angeles Southwest District Torrance Dept. M
MWSK Properties, LLC,	Plaintiff,	Case No.:	****2578
vs.		[Tentative] RULING
SOUTH BAY MONTESSORI SCHOOL,	Defendant.

Hearing Date: September 17, 2020

Moving Parties: Defendant South Bay Montessori School

Responding Party: Defendants Associated Design Services Inc. dba Gunderlock & Son Construction, B.A. Sims Engineering, Inc., and PMC Engineering, Inc.

Motion for Leave to File First Amended Cross-Complaint

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

RULING

The motion is GRANTED. Cross-complainant is ordered to file its FACC within fifteen days.

BACKGROUND

On January 2, 2018, plaintiff MWSK Properties, LLC filed a complaint against defendant South Bay Montessori School for (1) declaratory and injunctive relief and (2) nuisance. Plaintiff alleges that it is the owner of real property located at 23112 Hawthorne Blvd., Torrance. Defendant is the owner or leaseholder of 23104 Hawthorne Blvd., Torrance. Plaintiff’s property is a commercial lot. There is approximately 10,000 square feet of ground floor space utilized for retail and office space on the lot (“23112 Building”). The 23104 property is immediately adjacent and north of plaintiff’s 23112 property. Between January 2013 and September 2016, defendant made improvements to the 23104 property. From the time defendant completed the 23104 improvements until the present the 23112 building has experienced significant water intrusion. In making its improvements, defendant has failed to provide for appropriate collection and run-offs from the 23104 property and in doing so has caused significant water intrusion and water damage to the 23112 property and building. Plaintiff has been unable to lease out space within the 23112 building and has losses and lost profits stemming from the water damage.

On June 28, 2018, defendant South Bay Montessori filed a cross-complaint against Gluck Development Company, Inc. and Associated Design Services, Inc. dba Gunderlock & Son Construction for (1) implied equitable indemnity, (2) contribution, and (3) declaratory relief.

On January 11, 2019, Gluck Development Company, Inc. filed a cross-complaint against Moes 1 to 5 for (1) equitable indemnity, (2) contribution and equitable apportionment, and (3) declaratory relief.

On April 19, 2019, Gluck filed an amendment designating Moe 1 as Associated Design Services, Inc. dba Gunderlock & Son Construction, Moe 2 as PMC Engineering, Inc., Moe 3 Obelisk Architects, Moe 4 as B.A. Sims Engineering, Inc., Moe 5 as Bennett Enterprises, and Moe 6 as Construction Problems Resolution, Inc.

On June 6, 2019, Construction Problems Resolution filed a cross-complaint against Zoes 1-30 for indemnity, declaratory relief, and contribution.

On November 15, 2019, PMC Engineering, Inc. filed a cross-complaint for indemnity, declaratory relief, and contribution.

On March 10, 2020, PMC filed an amendment designating Moe 1 as Obelisk Architects, Moe 2 as B.A. Sims Engineering, Inc., Moe 3 as Pacific Coast Structural Engineering, LLC, Moe 4 as T&M Projects, Inc., and Moe 5 as Norcal Engineering.

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

Defendant and cross-complainant South Bay Montessori School requests leave to file a FACC to name the following additional parties as cross-defendants: B.A. Sims Engineering, Inc., Project Management Collaborative, LLC, and PMC Engineering, Inc. and to add a cause of action for third party beneficiary breach of contract against all cross-defendants.

South Bay Montessori explains that on June 25, 2020, the court granted plaintiff’s motion for leave to file a FAC to include a claim for trespass and encroachment. Upon evaluating the new allegations, South Bay Montessori believes that the proposed cross-defendants are implicated because Mary Mellone, owner of the land upon which the school is located, entered into contracts for the construction of the school and subject wall and the parties understood that such contracts were for the benefit of the school. South Bay Montessori argues that granting the motion will not prejudice the parties as no trial date is scheduled.

In opposition, Gunderlock argues that the proposed FAC fails to state a cause of action for third party beneficiary and is deficient as a matter of law because cross-complainant does not allege facts to show that it has standing or capacity to sue or that it was intended to be a beneficiary under the terms of the contract. Further, Mary Mellone entered into a settlement agreement with Gunderlock that specifically released various claims including the one South Bay Montessori seeks to assert.

In opposition, B.A. Sims Engineering (“Sims”) argues that it will be prejudiced because it has effectively been denied the opportunity to conduct discovery, meaningfuly participate in subsequent depositions, participate in settlement discussions and expert exchanges, and pursue a timely motion for summary judgment. Sims also argues that the motion fails to comply with the procedural requirements because the declaration does not detail when the facts were discovered and why the motion was not bought earlier. Further, Sims argues, the purported amendment is a “sham” amendment because its identity was either actually or constructively known. Moreover, South Bay Montessori did not comply with the mandatory requirements of CCP ;411.35 relating to filing a sufficient Certificate of Merit. Also, cross-complainant failed to attach copies of the written contract or set forth the relevant terms verbatim.

In opposition, PMC Engineering argues that South Bay Montessori has been dilatory and even argued in its opposition to plaintiff’s motion for leave to amend that “these purported facts” have long been known, since June 2018. PMC contends that it would be unduly prejudiced because the parties have completed the lion’s share of fact discovery. PMC also argues that South Bay Montessori has not complied with Rule 3.1324 because the declaration does not specify when the facts giving rise to the amended allegations were discovered and the reasons why the request for amendment was not made earlier. PMC has been in the case since November 2019. The proposed FAC also fails to attach the contracts and cite the contract language breached. PMC argues that such an amendment would be futile as the elements of a claim for breach of third party beneficiary contract has not been alleged.

In reply, South Bay Montessori argues that it has not delayed in seeking to amend because it was filed less than two months after plaintiff amended its complaint. Further, it argues that cross-defendants will not be prejudiced.

The court finds that cross-complainant sufficiently complied with CRC Rule 3.1324, although the declaration was vague as to 3.1324(b)(3) and (4).

In light of the liberal policy in favor of amendment, and that plaintiff recently amended the complaint, and that cross-defendants will not be unduly prejudiced, the motion is GRANTED.

As for the proposed cause of action for third party beneficiary, although it appears that the allegations are insufficient, amendment does not appear to be futile. The court will allow cross-complainant to revise that cause of action to address the deficiencies raised by the oppositions.

Moving party is ordered to give notice of the ruling.

Case Number: ****2578    Hearing Date: September 11, 2020    Dept: M

Superior Court of California County of Los Angeles Southwest District Torrance Dept. M
MWSK PROPERTIES, LLC,	Plaintiff,	Case No.:	****2578
vs.		[Tentative] RULING
SOUTH BAY MONTESSORI SCHOOL,	Defendant.

Hearing Date: September 11, 2020

Moving Parties: Defendant South Bay Montessori School

Responding Party: Plaintiff MWSK Properties, LLC

(1) Demurrer to FAC

(2) Motion to Strike

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

RULING

The demurrer is OVERRULED as to the 3^rd cause of action in the FAC. The motion to strike is GRANTED as to para. 38 and prayer for punitive damages. The motion is DENIED as to para. 22.

BACKGROUND

On January 2, 2018, plaintiff MWSK Properties, LLC filed a complaint against defendant South Bay Montessori School for (1) declaratory and injunctive relief and (2) nuisance. Plaintiff alleges that it is the owner of real property located at 23112 Hawthorne Blvd., Torrance. Defendant is the owner or leaseholder of 23104 Hawthorne Blvd., Torrance. Plaintiff’s property is a commercial lot. There is approximately 10,000 square feet of ground floor space utilized for retail and office space on the lot (“23112 Building”). The 23104 property is immediately adjacent and north of plaintiff’s 23112 property. Between January 2013 and September 2016, defendant made improvements to the 23104 property. From the time defendant completed the 23104 improvements until the present the 23112 building has experienced significant water intrusion. In making its improvements, defendant has failed to provide for appropriate collection and run-offs from the 23104 property and in doing so has caused significant water intrusion and water damage to the 23112 property and building. Plaintiff has been unable to lease out space within the 23112 building and has losses and lost profits stemming from the water damage.

On June 28, 2018, defendant South Bay Montessori filed a cross-complaint against Gluck Development Company, Inc. and Associated Design Services, Inc. dba Gunderlock & Son Construction for (1) implied equitable indemnity, (2) contribution, and (3) declaratory relief.

On January 11, 2019, Gluck Development Company, Inc. filed a cross-complaint against Moes 1 to 5 for (1) equitable indemnity, (2) contribution and equitable apportionment, and (3) declaratory relief.

On April 19, 2019, Gluck filed an amendment designating Moe 1 as Associated Design Services, Inc. dba Gunderlock & Son Construction, Moe 2 as PMC Engineering, Inc., Moe 3 Obelisk Architects, Moe 4 as B.A. Sims Engineering, Inc., Moe 5 as Bennett Enterprises, and Moe 6 as Construction Problems Resolution, Inc.

On June 6, 2019, Construction Problems Resolution filed a cross-complaint against Zoes 1-30 for indemnity, declaratory relief, and contribution.

On November 15, 2019, PMC Engineering, Inc. filed a cross-complaint for indemnity, declaratory relief, and contribution.

On March 10, 2020, PMC filed an amendment designating Moe 1 as Obelisk Architects, Moe 2 as B.A. Sims Engineering, Inc., Moe 3 as Pacific Coast Structural Engineering, LLC, Moe 4 as T&M Projects, Inc., and Moe 5 as Norcal Engineering.

On June 30, 2020, plaintiff filed a FAC for (1) declaratory and injunctive relief, (2) nuisance, and (3) trespass and encroachment.

LEGAL AUTHORITY

When considering demurrers, courts read the allegations liberally and in context. Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228. “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905. “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. CCP ; 436(a). The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. CCP ; 436(b). The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. CCP ; 436. The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. CCP ; 437.

Civil Code ; 3294 authorizes the recovery of punitive damages in non-contract cases where “the defendant has been guilty of oppression, fraud, or malice . . . .” The Court in Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95, found that “[s]omething more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or ‘malice,’ or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton.”

“’Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” Civil Code ; 3294(c)(1).

As the Court noted in College Hospital v. Superior Court (1994) 8 Cal.4th 704, 713, Section 3294 was amended in 1987 to require that, where malice is based on a defendant’s conscious disregard of a plaintiff’s rights, the conduct must be both despicable and willful. The Court in College Hospital held further that “despicable conduct refers to circumstances that are base, vile, or contemptible.” Id. at 725 (citation omitted).

DISCUSSION

Demurrer

Defendant demurs to the 3^rd cause of action for trespass and encroachment on the grounds that the allegations are insufficient to constitute a cause of action.

“’Trespass is an unlawful interference with possession of property.’ The elements of trespass are: (1) the plaintiff’s ownership or control of the property; (2) the defendant’s intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant’s conduct was a substantial factor in causing the harm. (See CACI No. 2000).” Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal. App. 5^th 245, 262 (citations omitted).

Under this cause of action, plaintiff alleges that plaintiff is the fee owner and in control of the 23112 Property and 23112 Building. FAC, ¶33. Defendant, through its authorized representatives and construction personnel, intentionally, recklessly, or negligently entered and encroached on plaintiff’s property and building. Specifically, defendant caused the footing and foundation of the 23112 Building to be chipped away and removed from the 23112 Property, without plaintiff’s knowledge or permission. Defendant also caused the CMU Wall improperly to be supported by concrete poured so that it encroaches and trespasses onto the 23112 Property. The CMU Wall is also linked to the 23112 Building, also without plaintiff’s knowledge or permission. Id., ¶34. The CMU Wall creates a permanent trespass and encroachment. Id., ¶35. Plaintiff has suffered actual and irreparable harm. The harm has created a disclosure issue in connection with any attempted sale of or attempts to lease the property. Disclosure of the trespass and encroachment by defendant will significantly adversely impact the market value of the property. Id., ¶37.

Defendant argues that plaintiff has not alleged that it has sustained any damages as a result of the structures allegedly being “linked” by concrete. Defendant contends that plaintiff’s allegation that such a trespass may impact its future ability to sell or lease the property or that it may impact the property value in the future is speculative.

In opposition, plaintiff argues that its damages are not speculative and that it has sufficiently alleged actual harm and the current negative impact on plaintiff’s property.

The court finds that the allegations are sufficient as plaintiff has alleged facts to support the elements, including present harm. Further, plaintiff has alleged future harm because the purported trespass is permanent. “A permanent trespass is an intrusion on property under circumstances that indicate an intention that the trespass shall be permanent. In these cases, the law considers the wrong to be completed at the time of entry and allows recovery of damages for past, present, and future harm in a single action, generally the diminution in the property's value. . . . In contrast, a continuing trespass is an intrusion under circumstances that indicate the trespass may be discontinued or abated. In these circumstances, damages are assessed for present and past damages only; prospective damages are not awarded because the trespass may be discontinued or abated at some time, ending the harm.” Starrh & Starrh Cotton Growers v. Aera Energy LLC (2007) 153 Cal. App. 4^th 583, 599 (citations omitted).

The demurrer is thus OVERRULED.

Motion to Strike

Defendant requests that the court strike para. 22 (“intentionally and recklessly”); para. 38 (“Defendant’s actions as alleged herein were undertaken with malice, oppression and fraud. Plaintiff is entitled to recover exemplary and punitive damages from Defendant, according to proof.”); and prayer at 3. for punitive and exemplary damages.

Defendant argues that the allegations are conclusory and insufficient to support punitive damages.

In opposition, plaintiff argues that the allegations show a pattern of misconduct and that defendant knowingly and intentionally injured plaintiff by (1) failing to include details of collection and run-offs on the plans it submitted to Torrance; (2) refusing to respond to plaintiff’s efforts to rectify the water intrusion onto its property from South Bay’s property; (3) demolishing and removing portions of the footing and foundation of plaintiff’s building on plaintiff’s property; and (4) pouring concrete such that it resulted in a linking of the two properties. FAC, ¶¶16, 18, 20.

The court finds that the allegations are insufficient to show malice, oppression, or fraud to support a claim for punitive damages. Thus, the motion is GRANTED as to para. 38 and prayer for punitive damages. The motion is DENIED as to para. 22.

Defendant is ordered to give notice of the ruling.

Case Number: ****2578    Hearing Date: August 19, 2020    Dept: M

Superior Court of California County of Los Angeles Southwest District Torrance Dept. M
MWSK Properties LLC,	Plaintiff,	Case No.:	****2578
vs.		[Tentative] RULING
South Bay Montessori School and DOES 1 through 10, inclusive.	Defendants.

Hearing Date: August 19, 2020

Moving Parties: Defendant B.A. Sims Engineering, Inc.

Responding Party: Plaintiff PMC Engineering, Inc.

(1) Demurrer to Cross-Complaint

(2) Motion to Strike Cross-Complaint

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

RULING

The Motion to Strike is GRANTED.

The demurrer is MOOT.

BACKGROUND

On January 2, 2018, Plaintiff MWSK Properties, LLC (MWSK) filed a complaint against Defendant South Bay Montessori School for (1) declaratory and injunctive relief and (2) nuisance. Plaintiff alleges that it is the owner of real property located at 23112 Hawthorne Blvd., Torrance. Defendant is the owner or leaseholder of 23104 Hawthorne Blvd., Torrance. Plaintiff’s property is a commercial lot. There is approximately 10,000 square feet of ground floor space utilized for retail and office space on the lot (“23112 Building”). The 23104 property is immediately adjacent and north of plaintiff’s 23112 property. Between January 2013 and September 2016, Defendant made improvements to the 23104 property. From the time Defendant completed the 23104 improvements until the present the 23112 building has experienced significant water intrusion. In making its improvements, Defendant has failed to provide for appropriate collection and run-offs from the 23104 property and in doing so has caused significant water intrusion and water damage to the 23112 property and building. Plaintiff has been unable to lease out space within the 23112 building and has losses and lost profits stemming from the water damage.

On June 28, 2018, Defendant filed a cross-complaint against Gluck Development Company, Inc. (Gluck) and Associated Design Services, Inc. dba Gunderlock & Son Construction for (1) implied equitable indemnity, (2) contribution, and (3) declaratory relief.

On January 11, 2019, Gluck Development Company, Inc. filed a cross-complaint against Moes 1 to 5 for (1) equitable indemnity, (2) contribution and equitable apportionment, and (3) declaratory relief.

On April 19, 2019, Gluck filed an amendment designating Moe 1 as Associated Design Services, Inc. dba Gunderlock & Son Construction, Moe 2 as PMC Engineering, Inc., Moe 3 Obelisk Architects, Moe 4 as B.A. Sims Engineering, Inc., Moe 5 as Bennett Enterprises, and Moe 6 as Construction Problems Resolution, Inc.

On June 6, 2019, Construction Problems Resolution, Inc. filed a cross-complaint against Zoes 1-30 for indemnity, declaratory relief, and contribution.

On November 15, 2019, PMC Engineering, Inc. filed a cross-complaint against Moes 1 to 100 for indemnity, contribution, and declaratory relief.

On March 10, 2020, PMC Engineering, Inc. filed an amendment to cross-complaint designating Moe 1 as Obelisk Architects, Moe 2 as B.A. Sims Engineering, Inc., Moe 3 as Pacific Coast Structural Engineering, LLC, Moe 4 as T&M Projects, Inc. dba T&M Construction, and Moe 5 as Norcal Engineering.

On March 25, 2020, PMC Engineering, Inc. filed a request for dismissal without prejudice as to Pacific Coast Structural Engineering, LLC. The dismissal was entered on the same date. Also, on the same date, PMC Engineering, Inc. filed an amendment to cross-complaint designating Moe 6 as Pacific Coast Structural Engineering, Inc. On June 22, 2020, B.A. Sims Engineering, Inc. filed the instant motions to demur and strike.

On June 24, 20202, T&M Projects dba T&M Construction filed a cross-complaint against Moes 1 to 200 for equitable/implied indemnity, apportionment and contribution, and declaratory relief.

On June 25, 2020, the Court granted Construction Problems Resolution, Inc.’s Motion for Determination of Good Faith Settlement as to Plaintiff MWSK Properties, LLC.

On June 30, 2020, after leave of court, MWSK Properties, LLC filed a First Amended Complaint.

On July 17, 2020, PMC Engineering, Inc. filed a request for dismissal without prejudice as to Pacific Coast Structural Engineering, Inc. The dismissal was entered on the same date.

On July 17, 2020, Construction Problems Resolution, Inc. dismissed its cross-complaint.

LEGAL AUTHORITY

Motion to strike

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. CCP ; 436(a). The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. CCP ; 436(b). The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. CCP ; 436. The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. CCP ; 437.

CCP ; 431.10 states, “(b) An immaterial allegation in a pleading is any of the following: (1) An allegation that is not essential to the statement of a claim or defense. (2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense. (3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint. (c) An “immaterial allegation” means “irrelevant matter” as that term is used in Section 436.”

Demurrer

When considering demurrers, courts read the allegations liberally and in context. Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228. “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905. “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.

DISCUSSION

As a preliminary matter, Pacific Coast Structural Engineering, Inc. (Pacific) seeks to join in B.A. Sims Engineering, Inc.’s (Sims) motions. However, on July 20, 2020, Pacific filed its notice of taking its demurrer off calendar.

Request for Judicial Notice

Sims unopposed request for judicial notice is GRANTED as to numbers 1 – 6, and 8. The request is DENIED as to numbers 7 and 9. Cal. Evi. Code ;; 451, 452. In regard to the documents for which the Court grants judicial notice, the Court is not mandated to accept the truth of its contents or the parties’ interpretation of those contents. Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.

Motion to Strike

Sims motions the Court to strike PMC’s cross-complaint filed on November 15, 2019 and subsequently amended on March 10, 2020.

Sims argues that PMC never sought leave to file the cross-compliant after the trial date has been set pursuant to CCP ; 428.50. Additionally, Sims contends that, as a consequence of the late filing, Sims has effectively been denied the opportunity to conduct timely discovery to defend itself, participate in settlement discussions, and pursue a timely motion for summary judgment. Sims further asserts that PMC fails to comply with the mandatory statutory requirements of CCP ; 411.35(a) and (b) in filing its Certificate of Merit (Certificate). Specifically, Sims contends that PMC did not file a Certificate when it first filed its cross-complaint, and that PMC untimely filed the Certificate on March of 2020. Moreover, even if PMC’s counsel had provided the required declaration regarding the inability to perform pursuant to CCP ; 411.35(b)(2), the Certificate was still late and subject to strike because the Certificate was untimely filed past the 60-day deadline. See CCP ; 411.35(b)(2). Sims also argues that the Certificate is defective because the declaration does not state that the “professional engineer” was a Civil Engineer, which is an engineer in the same discipline as Sims; there was no indication that the person consulted is not a party to the litigation; and the Certificate does not contain a statement verifying that the consultant has rendered an opinion that Sims as negligent in the performance of its professional services as to the Civil Engineering scope of work.

In opposition, PMC contends that it filed its Moe amendment naming Sims was timely and made as soon as the facts warranted. Specifically, PMC avers that it filed the amendment following mediation with MWSK in late February 2020, which MWSK provided a mediation protected report containing claims against design professionals. Further, PMC contends leave of Court is not required pursuant to CCP ; 428.10 because its cross-complaint arises out of the same occurrence as MWSK’s claims. Moreover, PMC contends that currently there is no trial date, and Sims has not been prejudiced because PMC will provide Sims with past discoveries. Additionally, PMC contends that other parties in its Moe amendment have made appearance, e.g., Norcal, T&M, Obelisk, thus, allowing Sims to remove itself from the litigation and force PMC to pursue Sims later makes no sense. As to the Certificate, PMC argues that the Certificate has been amended to rectify the deficiencies. PMC further avers that the Certificate was timely filed as they were done as soon as PMC became aware of the issues MWSK was making.

Sims substantially reiterates its position in its reply.

Sims’s arguments are well-taken. California Code of Civil Procedure section 428.50 states: “(a) A party shall file a cross-complaint against any of the parties who filed the complaint or cross-complaint against him or her before or at the same time as the answer to the complaint or cross-complaint. (b) Any other cross-complaint may be filed at any time before the court has set a date for trial. (c) A party shall obtain leave of court to file any cross-complaint except one filed within the time specified in subdivision (a) or (b). Leave may be granted in the interest of justice at any time during the course of the action.” CCP ; 429.50, subd. (c), expressly mandates leave of court before filing a cross-complaint not within the time specified in subdivision (a) or (b). Vacating of trial date does not matter. Loney v. Superior Court (1984) 160 Cal.App.3d 719, 723.

Here, on December 27, 2018, the Court sets the original trial date for January 15, 2020. On November 18, 2019, the Court continued the trial to May 13, 2019. The Court subsequently vacated the May 13, 2019 trial date on March 17, 2020. On January 11, 2019, Gluck filed its cross-complaint for indemnity and contribution. Gluck later filed an amendment naming its subcontractors, including PMC. PMC filed its original cross-complaint on November 15, 2019, naming only Moes 1 through 100. On March 10, 2020, PMC filed an amendment to its cross-complaint designating, among others, Moe 2 as Sims and Moe 3 as Pacific. Notably, PMC did not seek leave of court to file its cross-complaint. PMC is required to seek leave of court prior to filing a cross-complaint after the Court has set a date for trial. See Loney, supra. Therefore, PMC improperly filed its cross-complaint on November 15, 2019 – after the Court has already set a trial date – without first seeking leave of court.

The Court now addresses the issue of PMC’s Certificate.

CCP ; 411.35(a) requires cross-complaint for damages or indemnity, arising out of the professional negligence of a person holding a valid architect’s certificate, a valid registration as a professional engineer, or a valid land surveyor's license, “on or before the date of service of the…cross-complaint on any…cross-defendant, the attorney for the…cross-complainant shall file and serve the certificate specified by subdivision (b).” The failure to file a certificate in accordance with CCP ; 411.35 shall be grounds for a demurrer or a motion to strike. CCP ; 411.35(g).

Here, PMC untimely filed its first Certificate on June 12, 2020—after it filed its cross-complaint on November 15, 2019 and its amended cross-complaint on March 10, 2020. PMC subsequently filed amended Certificates on June 17, 2020 and August 6, 2020; these amended Certificates are nonetheless untimely. CCP ; 411.35(a).

Based on the foregoing, Sims’s Motion to Strike is GRANTED.

Demurrer

As the Motion to Strike is granted, the demurrer is MOOT.

Case Number: ****2578    Hearing Date: June 25, 2020    Dept: SWM

Superior Court of California County of Los Angeles Southwest District Torrance Dept. M
MWSK Properties, LLC,	Plaintiff,	Case No.:	****2578
vs.		[Tentative] RULING
SOUTH BAY MONTESSORI SCHOOL,	Defendant.

Hearing Date: June 25, 2020

Moving Parties: Plaintiff MWSK Properties, LLC

Responding Party: None

Motion for Leave to File First Amended Complaint

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

RULING

The motion to file first amended complaint is GRANTED. Plaintiff is ordered to file its FAC within five days.

BACKGROUND

On January 2, 2018, plaintiff MWSK Properties, LLC filed a complaint against defendant South Bay Montessori School for (1) declaratory and injunctive relief and (2) nuisance. Plaintiff alleges that it is the owner of real property located at 23112 Hawthorne Blvd., Torrance. Defendant is the owner or leaseholder of 23104 Hawthorne Blvd., Torrance. Plaintiff’s property is a commercial lot. There is approximately 10,000 square feet of ground floor space utilized for retail and office space on the lot (“23112 Building”). The 23104 property is immediately adjacent and north of plaintiff’s 23112 property. Between January 2013 and September 2016, defendant made improvements to the 23104 property. From the time defendant completed the 23104 improvements until the present the 23112 building has experienced significant water intrusion. In making its improvements, defendant has failed to provide for appropriate collection and run-offs from the 23104 property and in doing so has caused significant water intrusion and water damage to the 23112 property and building. Plaintiff has been unable to lease out space within the 23112 building and has losses and lost profits stemming from the water damage.

On June 28, 2018, defendant South Bay Montessori filed a cross-complaint against Gluck Development Company, Inc. and Associated Design Services, Inc. dba Gunderlock & Son Construction for (1) implied equitable indemnity, (2) contribution, and (3) declaratory relief.

On January 11, 2019, Gluck Development Company, Inc. filed a cross-complaint against Moes 1 to 5 for (1) equitable indemnity, (2) contribution and equitable apportionment, and (3) declaratory relief.

On April 19, 2019, Gluck filed an amendment designating Moe 1 as Associated Design Services, Inc. dba Gunderlock & Son Construction, Moe 2 as PMC Engineering, Inc., Moe 3 Obelisk Architects, Moe 4 as B.A. Sims Engineering, Inc., Moe 5 as Bennett Enterprises, and Moe 6 as Construction Problems Resolution, Inc.

On June 6, 2019, Construction Problems Resolution filed a cross-complaint against Zoes 1-30 for indemnity, declaratory relief, and contribution.

On November 15, 2019, PMC Engineering, Inc. filed a cross-complaint for indemnity, declaratory relief, and contribution.

On March 10, 2020, PMC filed an amendment designating Moe 1 as Obelisk Architects, Moe 2 as B.A. Sims Engineering, Inc., Moe 3 as Pacific Coast Structural Engineering, LLC, Moe 4 as T&M Projects, Inc., and Moe 5 as Norcal Engineering.

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

Plaintiff requests leave to file a first amended complaint to add additional allegations at paras. 16, 18, 20, 21, 22, 23, and a cause of action for trespass and encroachment at paras. 32-38, and a prayer for punitive and exemplary damages.

Plaintiff explains that in September and November 2019 and February 2020, plaintiff took the deposition of Project Manager John Spock, PMK Ennio Schiappa, and Structural Engineer Jafar Hashemi, respectively. Plaintiff asserts that during the course of these depositions, plaintiff first became aware that the foundation and the CMU Wall of the building constructed on the 23104 property were built such that the foundation and CMU Wall encroach upon the 23112 property, and that South Bay failed to include sufficient details of the CMU Wall, the property line separating the properties, and the appropriate collection and run-offs required by the conditional use permit granted to South Bay to build its school. On March 2, 2020, the parties engaged in mediation, which was unsuccessful. Plaintiff contends that it does not anticipate any significant additional discovery due to the addition of the trespass claim and that it will not result in any delay. See declaration of William Hess.

The court finds that plaintiff has complied with CRC Rule 3.1324. There is no opposition.

The motion is therefore GRANTED.

Plaintiff is ordered to give notice of the ruling.

************************************************************

Superior Court of California County of Los Angeles Southwest District Torrance Dept. M
MWSK PROPERTIES, LLC,	Plaintiff,	Case No.:	****2578
vs.		[Tentative] RULING
SOUTH BAY MONTESSORI SCHOOL,	Defendant.

Hearing Date: June 25, 2020

Moving Parties: Cross-defendant and cross-complainant Construction Problems Resolution, Inc. (“CPRI”)

Responding Party: Cross-defendant/cross-complainant Gluck Development Company, Inc. and joinder by PMC Engineering, Inc.

Motion for Determination of Good Faith Settlement

RULING

BACKGROUND

DISCUSSION

In City of Grand View Terrace v. Superior Court (1987) 192 Cal. App. 3d 1251, 1261, the court provided the following guidance regarding a motion for a good faith settlement determination:

This court notes that of the hundreds of motions for good faith determination presented for trial court approval each year, the overwhelming majority are unopposed and granted summarily by the trial court.  At the time of filing in many cases, the moving party does not know if a contest will develop.  If each motion required a full recital by declaration or affidavit setting forth a complete factual response to all of the Tech-Bilt factors, literally thousands of attorney hours would be consumed and inch-thick motions would have to be read and considered by trial courts in an exercise which would waste valuable judicial and legal time and clients’ resources. . . . That is to say, when no one objects, the barebones motion which sets forth the ground of good faith, accompanied by a declaration which sets forth a brief background of the case is sufficient.

If the good faith settlement is contested, section 877.6, subdivision (d), sets forth a workable ground rule for the hearing by placing the burden of proving the lack of good faith on the contesting party.  Once there is a showing made by the settlor of the settlement, the burden of proof on the issue of good faith shifts to the nonsettlor who asserts that the settlement was not made in good faith.  If contested, declarations by the nonsettlor should be filed which in many cases could require the moving party to file responsive counterdeclarations to negate the lack of good faith asserted by the nonsettling contesting party. 

192 Cal. App. 3d 1251, 1260-1261 (citation omitted).

“[Code of Civil Procedure] Section 877.6 was enacted by the Legislature in 1980 to establish a statutory procedure for determining if a settlement by an alleged joint tortfeasor has been entered into in good faith and to provide a bar to claims of other alleged joint tortfeasors for equitable contribution or partial or comparative indemnity when good faith is shown.”  IRM Corp. v. Carlson (1986) 179 Cal. App. 3d 94, 104.

CCP ; 877.6(a)(1) provides, in relevant part, that, on noticed motion, “[a]ny party to an action wherein it is alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or . . . and one or more alleged tortfeasors or co-obligors . . . .”  “A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.”  CCP ; 877.6(c).  Although a determination that a settlement was in good faith does not discharge any other party from liability, “it shall reduce the claims against the others in the amount stipulated” by the settlement.  CCP ; 877(a).   

“The party asserting the lack of good faith shall have the burden of proof on that issue.”  CCP ; 877.6(d).

In Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499, the California Supreme Court identified the following nonexclusive factors courts are to consider in determining if a settlement is in good faith under section 877.6:  “a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability, the amount paid in settlement, the allocation of settlement proceeds among plaintiffs, and a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial.  Other relevant considerations include the financial conditions and insurance policy limits of settling defendants, as well as the existence of collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants.” 

The evaluation of whether a settlement was made in good faith is required to “be made on the basis of information available at the time of settlement.”  Tech-Bilt, 38 Cal.3d at 499.  “‘[A] defendant’s settlement figure must not be grossly disproportionate to what a reasonable person, at the time of the settlement, would estimate the settling defendant’s liability to be.’ [Citation.]”  Id. at 499. 

“The party asserting the lack of good faith, who has the burden of proof on that issue (; 877.6, subd. (d)), should be permitted to demonstrate, if he can, that the settlement is so far ‘out of the ballpark’ in relation to these factors as to be inconsistent with the equitable objectives of the statute.  Such a demonstration would establish that the proposed settlement was not a ‘settlement made in good faith’ within the terms of section 877.6.”  Tech-Bilt, 38 Cal.3d at 499-500. 

The court considered the Tech-Bilt factors as applied to the settlement.

First, as to a rough approximation of plaintiff’s total recovery, plaintiff has asserted in its discovery responses that it has sustained $2 million in damages.  A large component of its damages is a loss of rent calculated at $8,500 per month since 2014. 

Second, as to CPRI’s proportionate liability, CPRI argues that it has no liability and that there is no evidence of wrongdoing by CPRI or how any wrongdoing caused plaintiff’s damages.  CPRI explains that it is a waterproofing consultant.  In April 2014, Project Management Collaborative contacted CPRI about having it provide certain waterproofing consulting services for an ongoing project involving the construction of the South Bay Montessori School in Torrance.  Project Management was acting as the construction manager on behalf of Mary Mellone/South Bay Montessori School.  At that time, Project Management’s primary issue of concern was the absence of waterproofing on the existing below-grade walls of the subterranean parking garage.  Thereafter, CPRI and South Bay entered into a written agreement whereby CPRI would review the waterproofing of the retaining walls, exterior vertical walls, and under slab water protection of the project.  The agreement provided that CPRI shall not be responsible for or liable for any other waterproofing area or issue not part of the proposal, and that CPRI had no responsibility for identifying any waterproofing problems not associated with the contracted work or for notifying any parties.  CPRI asserts that it had no authority, under the agreement or otherwise, to instruct or to direct any contractor or subcontractor to implement its opinions.  Randall Lim decl. 

CPRI contends that it was not requested to review or to provide any opinions concerning the onsite drainage systems or any drainage systems below grade at the project.  Its Site Review Reports states, “Review of the exterior plan of the retaining wall found no evidence of waterproofing or water protection.”  Under “Conclusions,” CPRI noted that, “Based on the observations of the current construction, the installation of the CMU retaining walls, . . . are in direct conflict with the plans of the architect’s designs and structural engineer’s designs and the geotechnical consultant’s recommendations. . . . Proper remedial action in compliance with plans and code would require removal of the existing concrete, CMU walls, and compacted grade to allow the installation of the designed vapor barrier and waterproofing systems.” 

In opposition, Gluck asserts that there was an on-site meeting (purportedly in September 2014) and that CPRI did not direct anyone to take down the wall or come up with any recommendation of how to waterproof the gap or recommend that alternative means to keep water out of the gap be explored.

In reply, CPRI contends that Gluck has provided no competent evidence that CPRI made any statements that was contrary to its written report, including that Randall Lim did not state that waterproofing of the South CMU wall “did not make any sense.”  CPRI contends that Lim’s field notes from his September 2014 visit make no reference to the South CMU Wall but only to the eastern property line.

Third, the parties settled for $10,000.

Fourth, as to the allocation of settlement proceeds, there is only one plaintiff.  

Fifth, the court recognizes that cross-defendant should pay less in settlement than if it were found liable after a trial.

Sixth, as to financial conditions and insurance policy limits of settling cross-defendant, CPRI’s insurance carrier agreed to pay $10,000 of a $1 million policy limit.

Seventh, as to whether there is evidence of collusion, fraud, or tortious conduct aimed to injure the interests of the other defendants, there is none.  Cross-defendant contends that they have been engaged in arms-length settlement negotiations since October 2019.

After considering the Tech-Bilt factors, the court finds and determines that the settlement entered into between plaintiff and cross-defendant CPRI was made in good faith within the meaning of CCP ; 877.6.  Cross-defendant Gluck has not met its burden to show that the settlement was not made in good faith. 

The motion is GRANTED.

Moving cross-defendant is ordered to give notice of the ruling.

Case Number: ****2578    Hearing Date: March 17, 2020    Dept: SWB

Superior Court of California County of Los Angeles Southwest District Torrance Dept. B
MWSK PROPERTIES, LLC,	Plaintiff,	Case No.:	****2578
vs.		[Tentative] RULING
SOUTH BAY MONTESSORI SCHOOL,	Defendant.

Hearing Date: March 17, 2020

Moving Parties: Cross-defendant and cross-complainant Construction Problems Resolution, Inc.

Responding Party: Cross-defendant/cross-complainant Gluck Development Company, Inc. and joinder by PMC Engineering, Inc.

Motion for Determination of Good Faith Settlement

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

RULING

The motion is GRANTED. The court ORDERS that in this action, all present claims and cross-complaints of any kind for implied indemnity, equitable comparative contribution and apportionment or partial or comparative indemnity and apportionment based on comparative negligence or comparative fault against CPRI be and are dismissed with prejudice. Any and all present and future claims against CPRI by or on behalf of joint tortfeasors or co-obligors are barred.

BACKGROUND

On January 2, 2018, plaintiff MWSK Properties, LLC filed a complaint against defendant South Bay Montessori School for (1) declaratory and injunctive relief and (2) nuisance. Plaintiff alleges that it is the owner of real property located at 23112 Hawthorne Blvd., Torrance. Defendant is the owner or leaseholder of 23104 Hawthorne Blvd., Torrance. Plaintiff’s property is a commercial lot. There is approximately 10,000 square feet of ground floor space utilized for retail and office space on the lot (“23112 Building”). The 23104 property is immediately adjacent and north of plaintiff’s 23112 property. Between January 2013 and September 2016, defendant made improvements to the 23104 property. From the time defendant completed the 23104 improvements until the present the 23112 building has experienced significant water intrusion. In making its improvements, defendant has failed to provide for appropriate collection and run-offs from the 23104 property and in doing so has caused significant water intrusion and water damage to the 23112 property and building. Plaintiff has been unable to lease out space within the 23112 building and has losses and lost profits stemming from the water damage.

On June 28, 2018, defendant filed a cross-complaint against Gluck Development Company, Inc. and Associated Design Services, Inc. dba Gunderlock & Son Construction for (1) implied equitable indemnity, (2) contribution, and (3) declaratory relief.

On January 11, 2019, Gluck Development Company, Inc. filed a cross-complaint against Moes 1 to 5 for (1) equitable indemnity, (2) contribution and equitable apportionment, and (3) declaratory relief.

On April 19, 2019, Gluck filed an amendment designating Moe 1 as Associated Design Services, Inc. dba Gunderlock & Son Construction, Moe 2 as PMC Engineering, Inc., Moe 3 Obelisk Architects, Moe 4 as B.A. Sims Engineering, Inc., Moe 5 as Bennett Enterprises, and Moe 6 as Construction Problems Resolution, Inc.

On June 6, 2019, Construction Problems Resolution filed a cross-complaint against Zoes 1-30 for indemnity, declaratory relief, and contribution.

On November 15, 2019, PMC Engineering, Inc. filed a cross-complaint for indemnity, declaratory relief, and contribution.

DISCUSSION

Cross-defendant and cross-complainant Construction Problems Resolution, Inc. (“CPRI”) requests an order that the settlement entered into by it and plaintiff was made in good faith.

In City of Grand View Terrace v. Superior Court (1987) 192 Cal. App. 3d 1251, 1261, the court provided the following guidance regarding a motion for a good faith settlement determination:

This court notes that of the hundreds of motions for good faith determination presented for trial court approval each year, the overwhelming majority are unopposed and granted summarily by the trial court. At the time of filing in many cases, the moving party does not know if a contest will develop. If each motion required a full recital by declaration or affidavit setting forth a complete factual response to all of the Tech-Bilt factors, literally thousands of attorney hours would be consumed and inch-thick motions would have to be read and considered by trial courts in an exercise which would waste valuable judicial and legal time and clients’ resources. . . . That is to say, when no one objects, the barebones motion which sets forth the ground of good faith, accompanied by a declaration which sets forth a brief background of the case is sufficient.

If the good faith settlement is contested, section 877.6, subdivision (d), sets forth a workable ground rule for the hearing by placing the burden of proving the lack of good faith on the contesting party. Once there is a showing made by the settlor of the settlement, the burden of proof on the issue of good faith shifts to the nonsettlor who asserts that the settlement was not made in good faith. If contested, declarations by the nonsettlor should be filed which in many cases could require the moving party to file responsive counterdeclarations to negate the lack of good faith asserted by the nonsettling contesting party.

192 Cal. App. 3d 1251, 1260-1261 (citation omitted).

“[Code of Civil Procedure] Section 877.6 was enacted by the Legislature in 1980 to establish a statutory procedure for determining if a settlement by an alleged joint tortfeasor has been entered into in good faith and to provide a bar to claims of other alleged joint tortfeasors for equitable contribution or partial or comparative indemnity when good faith is shown.” IRM Corp. v. Carlson (1986) 179 Cal. App. 3d 94, 104.

CCP ; 877.6(a)(1) provides, in relevant part, that, on noticed motion, “[a]ny party to an action wherein it is alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or . . . and one or more alleged tortfeasors or co-obligors . . . .” “A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.” CCP ; 877.6(c). Although a determination that a settlement was in good faith does not discharge any other party from liability, “it shall reduce the claims against the others in the amount stipulated” by the settlement. CCP ; 877(a).

“The party asserting the lack of good faith shall have the burden of proof on that issue.” CCP ; 877.6(d).

In Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499, the California Supreme Court identified the following nonexclusive factors courts are to consider in determining if a settlement is in good faith under section 877.6: “a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability, the amount paid in settlement, the allocation of settlement proceeds among plaintiffs, and a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial. Other relevant considerations include the financial conditions and insurance policy limits of settling defendants, as well as the existence of collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants.”

The evaluation of whether a settlement was made in good faith is required to “be made on the basis of information available at the time of settlement.” Tech-Bilt, 38 Cal.3d at 499. “‘[A] defendant’s settlement figure must not be grossly disproportionate to what a reasonable person, at the time of the settlement, would estimate the settling defendant’s liability to be.’ [Citation.]” Id. at 499.

“The party asserting the lack of good faith, who has the burden of proof on that issue (; 877.6, subd. (d)), should be permitted to demonstrate, if he can, that the settlement is so far ‘out of the ballpark’ in relation to these factors as to be inconsistent with the equitable objectives of the statute. Such a demonstration would establish that the proposed settlement was not a ‘settlement made in good faith’ within the terms of section 877.6.” Tech-Bilt, 38 Cal.3d at 499-500.

“Thus, Tech-Bilt held that in determining whether a settlement was made in good faith for purposes of section 877.6, a key factor a trial court should consider is whether the amount paid in settlement bears a reasonable relationship to the settlor’s proportionate share of liability. (Tech-Bilt, supra, 38 Cal.3d at pp. 499–500 . . . .) This is because one of the main goals of section 877.6 is ‘allocating costs equitably among multiple tortfeasors.’ (Tech-Bilt, supra, 38 Cal.3d at p. 502 . . . .).” TSI Seismic Tenant Space, Inc. v. Superior Court (2007) 149 Cal.App.4^th 159, 166. “Accordingly, a court not only looks at the alleged tortfeasor's potential liability to the plaintiff, but it must also consider the culpability of the tortfeasor vis-à-vis other parties alleged to be responsible for the same injury. Potential liability for indemnity to a nonsettling defendant is an important consideration for the trial court in determining whether to approve a settlement by an alleged tortfeasor. [Citation.]” Id. at 166.

The court considered the Tech-Bilt factors as applied to the settlement.

First, as to a rough approximation of plaintiff’s total recovery, plaintiff has asserted in its discovery responses that it has sustained $2 million in damages. A large component of its damages is a loss of rent calculated at $8,500 per month since 2014.

Second, as to CPRI’s proportionate liability, CPRI argues that it has no liability and that there is no evidence of wrongdoing by CPRI or how any wrongdoing caused plaintiff’s damages. CPRI explains that it is a waterproofing consultant. In April 2014, Project Management Collaborative contacted CPRI about having it provide certain waterproofing consulting services for an ongoing project involving the construction of the South Bay Montessori School in Torrance. Project Management was acting as the construction manager on behalf of Mary Mellone/South Bay Montessori School. At that time, Project Management’s primary issue of concern was the absence of waterproofing on the existing below-grade walls of the subterranean parking garage. Thereafter, CPRI and South Bay entered into a written agreement whereby CPRI would review the waterproofing of the retaining walls, exterior vertical walls, and under slab water protection of the project. The agreement provided that CPRI shall not be responsible for or liable for any other waterproofing area or issue not part of the proposal, and that CPRI had no responsibility for identifying any waterproofing problems not associated with the contracted work or for notifying any parties. CPRI asserts that it had no authority, under the agreement or otherwise, to instruct or to direct any contractor or subcontractor to implement its opinions. Randall Lim decl.

CPRI contends that it was not requested to review or to provide any opinions concerning the onsite drainage systems or any drainage systems below grade at the project. Its Site Review Reports states, “Review of the exterior plan of the retaining wall found no evidence of waterproofing or water protection.” Under “Conclusions,” CPRI noted that, “Based on the observations of the current construction, the installation of the CMU retaining walls, . . . are in direct conflict with the plans of the architect’s designs and structural engineer’s designs and the geotechnical consultant’s recommendations. . . . Proper remedial action in compliance with plans and code would require removal of the existing concrete, CMU walls, and compacted grade to allow the installation of the designed vapor barrier and waterproofing systems.”

In opposition, Gluck asserts that there was an on-site meeting (purportedly in September 2014) and that CPRI did not direct anyone to take down the wall or come up with any recommendation of how to waterproof the gap or recommend that alternative means to keep water out of the gap be explored.

In reply, CPRI contends that Gluck has provided no competent evidence that CPRI made any statements that was contrary to its written report, including that Randall Lim did not state that waterproofing of the South CMU wall “did not make any sense.” CPRI contends that Lim’s field notes from his September 2014 visit make no reference to the South CMU Wall but only to the eastern property line.

Third, the parties settled for $10,000.

Fourth, as to the allocation of settlement proceeds, there is only one plaintiff.

Fifth, the court recognizes that cross-defendant should pay less in settlement than if it were found liable after a trial.

Sixth, as to financial conditions and insurance policy limits of settling cross-defendant, CPRI’s insurance carrier agreed to pay $10,000 of a $1 million policy limit.

Seventh, as to whether there is evidence of collusion, fraud, or tortious conduct aimed to injure the interests of the other defendants, there is none. Cross-defendant contends that they have been engaged in arms-length settlement negotiations since October 2019.

After considering the Tech-Bilt factors, the court finds and determines that the settlement entered into between plaintiff and cross-defendant CPRI was made in good faith within the meaning of CCP ; 877.6. Cross-defendant Gluck has not met its burden to show that the settlement was not made in good faith.

The motion is GRANTED.

Moving cross-defendant is ordered to give notice of the ruling.