Motion for Leave (re Cross Complaint)
“[I]t is a rare case in which ‘a court will be justified in refusing a party leave to amend his pleadings so that he may properly present his case.’ [citation] If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion. [citation]” (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530 [internal citations omitted].)
Plaintiffs contend that through discovery and the recent completion of Marco Gutierrez’s deposition, they have acquired information regarding the alleged wrongdoing perpetrated by Defendants and Marco Gutierrez’s son, Mark.
Plaintiffs now move for leave to file a First Amended Complaint to add Mark A. Gutierrez, individually and dba Mark’s Construction Repair, as a new defendant, and to add the following causes of action: fraud (concealment and intentional misrepresentation), financial elder abuse, and violation of Bus. & Prof. Code § 17200 et seq.
The court finds that Plaintiffs’ counsel’s declaration and proposed pleading substantially complies with California Rules of Court, rule 3.1324. (See Kern Decl., ¶¶ 3-7, Exhs. A and B.)
In sum, the court grants the motion.
Plaintiffs SHALL separately file the proposed First Amended Complaint attached to the Kern Declaration as Exhibit A within five days.
Plaintiffs to give notice.
6 Hawkins vs. Hyatt Motion for Leave (re Cross Complaint) Corporation The court GRANTS the unopposed Motion for Leave to File a Cross-Complaint brought by Defendant HYATT
CORPORATION, pursuant to Code of Civil Procedure section 428.50.
Defendant seeks leave to file a Cross-Complaint against Aquatic Service, Inc., asserting the following claims: (1) Breach of Written Contract; (2) Express Indemnity; (3) Total Equitable Indemnity; (4) Partial Equitable Indemnity; (5) Contribution and Repayment; (6) Declaratory Relief re: Duty to Defend; (7) Declaratory Relief re: Duty to Indemnify; (8) Breach of Written Contract – Additional Insurance; and (9) Negligence. (Sandler Decl., ¶2, Exh. A.)
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The proposed Cross-Complaint specifically identifies the instant action and asserts proposed Cross-Defendant shares liability for the injuries sustained by Plaintiffs. (Sandler Decl., ¶2, Exh. A at ¶6, ¶25, ¶26, ¶29 and ¶33.) Additionally, the proposed Cross-Complaint asserts Cross- Defendant is contractually obligated to indemnify and defend Cross-Complainant, within this action. (Sandler Decl., ¶2, Exh. A at ¶9, ¶12, ¶16, ¶19, ¶20, ¶38, ¶40 and ¶45.)
Per Defense Counsel, “[a]t the time of the incident, AQUATIC was providing professional pool and spa services to HYATT (via a written services agreement) for the subject property including the subject spa where the incident took place.” (Sandler Decl., ¶10.)
“Cross-complaints for comparative equitable indemnity would appear virtually always transactionally related to the main action.” (Time for Living, Inc. v. Guy Hatfield Homes/ All American Development Co. (1991) 230 Cal.App.3d 30, 38.) “An indemnity claim effectively seeks to apportion among the parties to the indemnity action the precise liability claimed by the plaintiff in the main action; therefore the indemnity claim of necessity arises out of the same occurrence or series of occurrences as asserted by the plaintiff.” (Id. at p. 39.)
Based on the above, the proposed pleading qualifies for leave pursuant to Code of Civil Procedure section 428.10, subdivision (b)(1).
Additionally, as no prejudice is apparent, leave to file is GRANTED.
Defendant shall separately file the proposed Cross Complaint, attached as Exhibit A to the Declaration of Erika Sandler, within 5 days of this order.
Defendant to give notice.
7 Chaganti vs. Red Motion to Dismiss or Stay for Forum Non Conveniens Tail Residential LLC The court DENIES without prejudice specially appearing Defendants RED TAIL RESIDENTIAL, LLC and LINDSY HARVEY’s motion to dismiss or stay action for forum non conveniens.
On 5/15/26, the court posted a tentative ruling, which described the reasons why Defendants failed to meet their burden of establishing that a mandatory forum selection clause was enforceable between the parties and why the public and private factors are neutral under a traditional discretionary forum non conveniens analysis. Defendants requested an opportunity to provide supplemental briefing to cure any defects raised in the tentative ruling, which the court granted.
In Defendants’ supplemental brief, Defendants offer two declarations, one by Lindsy Harvey and one by Lori Jones, which attempt to authenticate a lease agreement. Both declarations end with “I declare under the penalty of perjury the foregoing is true and correct.” (See ROA 96 at 2:12 & ROA 97 at 2:16). Plaintiff objects to these declarations on the grounds that it does not comply with California law. Plaintiff is correct.
The declarations are not made under penalty of perjury under the laws of the State of California. (See Code of Civ. Proc., § 2015.5.) “[Code of Civil Procedure] Section 2015.5 seeks to enhance the reliability of all declarations used as hearsay evidence by disclosing the sanction for dishonesty. Thus, the statute requires some acknowledgement on the face of the declaration that perjured statements might
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