Balcal Construction, Inc. v. Suzanne Giraudo et al

2 All subsequent statutory references are to the Code of Civil Procedure unless otherwise specified.

time, and in light of the ruling as it pertains to BAC and the fact that the claims against the Insurance Producers appear to be derivative of those against BAC, the Court elects to DENY the Motion as to the Insurance Producers for lack of jurisdiction. (See Diaz v. Prof. Community Management, Inc. (2017) 16 Cal.App.5th 1190, 1204-05 [“The court lacks jurisdiction to rule on a motion that has not been properly noticed for hearing on the date in question.”].)

Defendants’ Reply improperly argues in support of purported amendments to the Cross- Complaint which were not contained in the Notice of Motion or sufficiently addressed in the Memorandum. (See Reply, 3:16-20.) Namely, Defendants’ Reply contends that their requested amendments include: (1) new facts as to Plaintiff Balcal Construction Inc. regarding the breach of written contract cause of action and (2) merges the most recent complaints filed in case no. 25CV000306 with case no. 23CV001364. It is improper to raise matters for the first time in Reply. (See San Diego Watercrafts, Inc. v.

Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316 [due process requires a party be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail]; American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453 [“Points raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument”].) For this reason, the motion to amend the cross-complaint to add the abovementioned points is DENIED.

B. LEGAL STANDARD

The Court has discretion to permit a party, after notice, to file an amendment to a pleading on any terms as may be just. (See Code Civ. Proc., § 473, subd. (a).) Similarly, “[a]ny judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.” (Code Civ. Proc., § 576.) Typically, a court will exercise its discretion liberally in favor of allowing amendment of the pleadings in order that litigation may be tried on its merits. (See Kauffman v. Bobo & Wood (1950) 99 Cal.App.2d 322, 323.)

C. DISCUSSION

Although not easy to follow, the gravamen of Defendants’ argument and evidence as to BAC appears to be: (1) they discovered, in late 2025, that (a) BAC denied coverage to Plaintiff and (b) Defendants are listed as Additional Insurers under the BAC policy; (2) thereafter, Defendants, as Additional Insureds under the BAC Policy, tendered their defense to BAC, who denied coverage; and (3) Defendants now seek to add BAC as a cross-defendant to assert their rights as Additional Insureds. (Declaration of Vincent Martin Spohn (“Spohn Decl.”), 4:6-8, 5:1- 2, 7:14:6-8, 4:26-5:2.)

In Opposition, BAC argues that the Motion should be denied because Defendants have no standing to sue BAC. BAC implicitly concedes that Defendants are Additional Insureds under the BAC Policy. However, BAC contends that the BAC Policy is a commercial general liability insurance policy, covering third-party claims seeking to establish the additional insured’s (i.e., Defendants’) liability for damages caused by the named insured’s (i.e., Plaintiff’s) work. (Declaration of Laure E. Stewart (“LES Decl.”), ¶¶ 7-8.) Here, BAC argues there is no third-

party claim against Defendants seeking to establish Defendants’ liability for damage caused by Plaintiff’s work. (Id., ¶¶ 2-4, 9.) Rather, the only claim against Defendants is the underlying complaint by Plaintiff (i.e., the named insured). The claim by Plaintiff is not a third-party claim, nor is it a claim against Defendants seeking to establish Defendants’ liability for damages caused by Plaintiff’s work. Thus, BAC argues Defendants do not satisfy the standing requirements to sue under Additional Insured status.

BAC further argues that, to the extent Defendants are suing BAC as Plaintiff’s insurer and not in their capacity as an Additional Insured—i.e., in an attempt to recover damages from BAC for the underlying conduct of its insured (Plaintiff)—this is improper under California law. “[G]enerally an insurer may not be joined as a party-defendant in the underlying action against the insured by the injured plaintiff. The fact that an insurer has agreed to indemnify the insured for any judgment rendered in the action does not make the insurer a proper party.

Liability insurance is not a contract for the benefit of the injured party so as to allow it to sue the insurer directly.” (Royal Indemnity Co. v. United Enterprises, Inc. (2008) 162 Cal.App.4th 194, 205.) Only after judgment has been obtained against the insured and the injured party becomes a judgment creditor may the injured party/creditor seek damages against the insurer. (Ibid.)

In Reply, Defendants concede that they cannot add BAC as Plaintiff’s insurer. Defendants argue that this is not the capacity in which they are seeking to add BAC. Rather, they seek to add BAC only in their capacity as Additional Insureds under the policy. (Reply, 7:5-8:8.)

With respect to their standing as Additional Insureds, Defendants argue that whether or not a third-party claim exists against them is not the standard; rather, it is the BAC policy’s Additional Insured endorsement language that governs. Yet, Defendants do not dispute that the BAC Additional Insured endorsement provides only for third-party claims. In this sense, Defendants’ reliance on the BAC policy’s Additional Insured endorsement language, as opposed to the requirement that a third-party claim exists, is a distinction without a difference.

In other words, BAC has shown that its policy’s Additional Insured endorsement limits coverage to thirdparty claims against the additional insured which seek to establish the additional insured’s liability for damages caused by the named insured’s work. Thus, in order to state a claim against BAC, a third-party claim against Defendants is a prerequisite.

There do not appear to be any allegations in the amended complaint regarding underlying claims other than the present action. (Spohn Decl., Exh. B.) Moreover, the only claims addressed by Defendants in Reply do not appear to satisfy BAC’s Additional Insured’s endorsement. Defendants argue that the third-party claim against them is Plaintiff’s complaint for monies owed, and/or Defendants’ own cross-complaint against Plaintiff for construction defect compensation. Defendants’ own cross-complaint is clearly not a third-party claim against Defendants.

Thus, that argument is rejected. The Court has a hard time construing Plaintiff’s complaint against Defendants as a third-party claim, as it is undisputed that Plaintiff is the primary insured under the BAC policy. Defendants’ argument that “California courts routinely find [Additional Insured] status and a duty to defend where the owner and contractor are suing each other over money owed and construction defects” is not supported by any authority. (See Reply, 7:20-25.)

Finally, Defendants’ argument that a court does not consider the validity of the proposed amended pleading on a motion for leave is overstated. A court of course has discretion to deny leave to amend where a proposed amendment fails to state a legally valid cause of action or defense. (Cal. Casualty Gen. Ins. Co. v. Sup. Ct. (1985) 173 Cal.App.3d 274, 280-81.) Such denial is most appropriate where the pleading is deficient as a matter of law and the defect could not be cured by further appropriate amendment. (Ibid.) Here, for the reasons discussed above, it appears to the Court that Defendants’ claims against BAC are deficient as a matter of law and that the defect cannot be cured by amendment.

Based on the foregoing, as well as the fact that trial in this matter is only 3.5 months away, and the case has been continued multiple times, the motion is DENIED.

Mark Andrews v. Richard Rockwell et al 24CV000304

DEFENDANT ENTERPRISE RENT-A-CAR CO. OF SAN FRANCISCO, LLC’S MOTION TO STRIKE THE FIRST AMENDED COMPLAINT AND DEMURRER

TENTATIVE RULING: The matter is CONTINUED to July 22, 2026, at 8:30 a.m. in Dept. A.

Colt Builders Corp. v. Russell Square Consulting, Inc. et al 25CV000412

[1] PLAINTIFF’S MOTION TO COMPEL RESPONSES TO REQUESTS FOR ADMISSION BY JSP AMERICAN CANYON LLC; REQUEST FOR MONETARY SANCTIONS

TENTATIVE RULING: The motion is DENIED. The parties’ respective requests for sanctions are DENIED.

The moving party failed to include in the notice of this motion proper notice of the Court’s tentative ruling system as required by Local Rule 2.9. Moving party is directed to immediately provide, by telephone call AND email, the missing notice to opposing party/ies forthwith. The requirements for requesting oral argument under Local Rule 2.9 remain in effect. However, the Court may grant belated requests for oral argument or continuance of hearing, made by any party who represents it did not timely receive the required notice, regardless of whether or not moving party is present at the hearing.

A. PROCEDURAL MATTERS

Plaintiff Colt Builders Corp. (“Plaintiff”) moves, pursuant to Code of Civil Procedure sections 2033.220, subdivision (a), and 2033.290, subdivision (d), 3 for an order compelling Defendant JSP American Canyon LLC (“JSP”) to serve verified responses to Plaintiff’s Requests

3 All subsequent statutory references are to the Code of Civil Procedure unless otherwise specified.

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