Opinion
Case No.: CV 08 2561 SBA.
November 7, 2008
DONGELL LAWRENCE FINNEY LLP, RICHARD A. DONGELL.
THOMAS F. VANDENBURG.
IAN P. CULVER, Los Angeles, CA., Attorneys for Plaintiff and Counter-Defendant Wells Fargo Bank, N.A., as Trustee for the Clara Poppic Trust.
ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT
The motion of Plaintiff Wells Fargo Bank, N.A., as Trustee of the Clara Poppic Trust ("Plaintiff") for leave to file a second amended complaint pursuant to Fed.R.Civ.P. 15(a)(2) came on for hearing before this Court, Thomas F. Vandenburg, Esq. appearing for Plaintiff.
Leave to amend should freely be granted when justice so requires. Fed.R.Civ.P. 15(a)(2). As Plaintiff's ninety-day notice and waiting period has expired, addition of this claim is proper. Zands v. Nelson, 779 F.Supp. 1254, 1259 (S.D. Cal. 1991). The support for the addition of the breach of contract and contractual indemnity claims is demonstrated in Universal Paragon Corp. v. Ingersoll-Rand Co., 2007 U.S. Dist. LEXIS 14530, 27 (N.D. Cal. Feb. 13, 2007). As a party may only seek CERCLA contribution from other liable parties after having been sued under CERCLA § 106 or § 107(a), the motion to amend to add a CERCLA § 113(f) claim is also proper. Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 161 (2004).
After consideration of the briefs and arguments of counsel, and all other matters presented to the Court,
IT IS HEREBY ORDERED:
1. Plaintiff's motion for leave to file a second amended complaint is GRANTED;
2. The already named and appearing defendants, KENNETH G. RENZ, ESTATE OF JACKSON R. DENNISON, KAZUKO UMSTEAD, GUAN HUANG, and WON JAE YI shall be required to respond to the Second Amended Complaint within twenty days of the date the Second Amended Complaint is filed.