RICO STOLL ET AL VS LAFONTAINE GLOBAL LLC ET AL

Tentative Rulings

Case Number: BC661002    Hearing Date: August 06, 2020    Dept: T

THERE ARE THREE TENTATIVE RULINGS:

Cross-Complainant Cappo Management XXVIII dba Marin County Ford (“Cappo”) moves to amend their Cross-Complaint in order to add a claim for express indemnification against Cross-Defendant GP Strategies Corporation dba GP Sandy (“GP Sandy”).

As to the requirements of CRC 3.1324, at issue is whether the declaration of Cappo’s Counsel, Mikhail Mdinaradze (“Mdinaradze”) provided sufficient facts to show when the new facts were discovered and the reason why the request for amendment was not made earlier. Mr. Mdinaradze’s declaration attached to the motion and attached to the reply fail to present any testimony as to when the new fact was discovered – the new fact being the indemnification provision in the contract between GP Sandy and Cross-Defendant Lafontaine Standby LLC (“Lafontaine”) to indemnify Lafontaine’s “suppliers.” GP Sandy provides that the contract was produced to Cappo in June 2019. Cappo’s Reply does not dispute this contention. Assuming that Cappo discovered the indemnification provision, there is sufficient showing that the filing of this motion on June 16, 2020 – about a year after discovery of the indemnification provision – is delayed.

Further, it is noted that Cappo’s original cross-complaint alleged an indemnification cause of action and thus Cappo’s argument that they were required to wait for the express indemnification cause of action to ripen is contradicted by their own pleading.

As such, Mr. Mdinaradze’s declaration failed to present facts showing when the new facts were discovered and a reason why the request was not made earlier.

Unreasonable delay in bringing the motion is not sufficient grounds to deny the motion. GP Sandy must show prejudice. The chronology of events in this action shows that GP Sandy settled the claims against them in February 2020. GP Sandy filed their motion for determination of good faith settlement on March 11, 2020. GP Sandy filed the motion relying upon the theory that all claims, inclusive of those alleged in Cappo’s original cross-complaint would be barred upon a finding that the settlement was in good faith. Far West Fin'l Corp. v. D & S Co., Inc. (1988) 46 Cal. 3d 796, 815-816. However, due to the coronavirus pandemic, GP Sandy’s motion was not heard on April 7, 2020 and is now being heard. In the interim, Cappo filed the instant motion which would effectively thwart GP Sandy’s settlement and keep GP Sandy in the action. It is noted that claims for express indemnification are not barred by a finding of good faith settlement. Bay Develop., Ltd. v. Sup.Ct. (Home Capital Corp.) (1990) 50 Cal. 3d 1012, 1019. GP Sandy will be prejudiced in that the time, funds and efforts expended in obtaining the settlement and filing the concurrent good faith settlement motion would be negated if the instant motion to amend is granted. GP Sandy would be required to continue to defend this action despite having entered a settlement with Plaintiff which would effectively remove GP Sandy from the case. With the fact that Cappo’s motion was filed after GP Sandy settled the claims against and filed the good faith settlement motion, there is sufficient showing of prejudice against GP Sandy.

The motion for leave to amend is unpersuasive and is, therefore, denied.

2.  MOTION FOR GOOD FAITH SETTLEMENT BY KRISTOPHER ALAN WALBY

No opposition has been received.  For the reasons as set forth in the moving papers:  GRANTED.

3.  MOTION FOR GOOD FAITH SETTLEMENT BY LAFONTAINE STANDBY LLC AND GP STRATEGIES CORPORATION ALSO D/B/A GP SANDY, A DIVISION OF GP STRATEGIES

No opposition has been received.  For the reasons as set forth in the moving papers:  GRANTED.