Judge: Andrew E. Cooper, Case: 21STCV37822, Date: 2024-06-07 Tentative Ruling

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Case Number: 21STCV37822    Hearing Date: June 7, 2024    Dept: F51

Dept. F-51 

Date: 6/7/24

Case #21STCV37822

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F-51

MOTION FOR LEAVE TO FILE CROSS-COMPLAINT

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Motion Filed: 5/8/24                                                                                      Jury Trial: 10/21/24

MOVING PARTY: Defendant Super Center Concepts, Inc., dba Superior Grocers (“Moving Defendant”)

RESPONDING PARTY: None

NOTICE: OK

RELIEF REQUESTED: An order granting Moving Defendant leave to file a cross-complaint against defendant Dart International.

TENTATIVE RULING: The unopposed motion is granted. Moving Defendant to separately file its proposed Cross-Complaint within 20 days of this order.

BACKGROUND

This is a consolidated wrongful death action arising from a vehicle collision which resulted in the death of Juan Carlos Menjivar and Ana Elena Moreno Santos (collectively, “Decedents”). On 8/15/21, while traveling on Interstate-5 Southbound, north of San Fernando Mission Boulevard, Los Angeles, CA, decedent Menjivar drove his vehicle into a parked truck driven by defendant Dart International’s employee, defendant Dewayne Maurice Floyd, while the truck was parked on the shoulder of the highway. The collision caused the death of both Menjivar and decedent Moreno Santos, who was a passenger in Menjivar’s vehicle. At all relevant times, Floyd was allegedly acting within the scope of his employment with Dart International to transport goods supplied by Moving Defendant.

On 10/13/21, Plaintiffs Jezebel Moreno (decedent Moreno Santos’ biological daughter and successor-in-interest) and Marvin Merino (plaintiff Moreno’s biological father) filed their complaint against Menjivar, Floyd, and Dart International, alleging the following causes of action: (1) Wrongful Death; and (2) Negligence in the lead case, LASC Case No. 21STCV37822. On 11/23/21, Plaintiffs filed their first amended complaint. On 5/12/22, Plaintiffs filed their second amended complaint, alleging a sole cause of action for Negligence. On 8/29/22, Plaintiffs filed their third amended complaint, alleging the following causes of action: (1) Wrongful Death; and (2) Survival. On 5/9/23, Plaintiffs amended their complaint to name Moving Defendant as previously unnamed Doe defendant 1.

On 1/25/22, Plaintiffs Victoria Menjivar and Sebastien Menjivar (decedent Menjivar’s biological children) filed their complaint against Floyd and Dart International, alleging the following causes of action: (1) Motor Vehicle Negligence; and (2) General Negligence in LASC Case No. 22STCV02907. On 5/21/22, Plaintiffs filed their first amended complaint.

On 8/16/22, Plaintiffs Estate of Ana Elena Moreno Santos, Arturo Moreno Banda (decedent Moreno Santos’ father), and Maria Santos Flores (decedent Moreno Santos’ mother) filed their complaint against Menjivar; Floyd; Dart International; Super Center Concepts, Inc.; Super Center Concepts Holdings LLC; and Samantah Malexus Menjivar; alleging the following causes of action: (1) Motor Vehicle Negligence; and (2) General Negligence in LASC Case No. 22STCV26608.

On 10/2/23, the parties filed a stipulation to consolidate the three related cases. On 5/8/24, Moving Defendant filed the instant motion. No opposition has been filed to date. On 5/31/24, Moving Defendant filed a notice of non-opposition.

ANALYSIS

“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. … A party shall obtain leave of court to file any cross-complaint…” (Code Civ. Proc. § 428.10.) If the proposed cross-complaint is permissive, leave of court may be granted “in the interest of justice” at any time during the course of the action. (Code Civ. Proc. § 428.50, subd. (c).) On the other hand, if the proposed cross-complaint is compulsory, then leave must be granted so long as the defendant is acting in good faith. (Code Civ. Proc. § 426.50.)

Here, while Moving Defendant does not specify whether its proposed cross-complaint is permissive or compulsory, it contends that leave to file its cross-complaint should be granted under statutes for either form. Moving Defendant argues that on 9/16/10 it entered into an Independent Contractor Agreement with defendant Dart International to transport goods, which contains an provision obligating Dart International to indemnify Moving Defendant for any alleged negligence or misconduct of Dart International’s employees or agents. (Mot. 4:13–17, citing Ex. A to Decl. of Dane H. Taylor.) “Although Dart has accepted Superior Grocers’ tender request under the Agreement, there exists the potential that a judgment could possibly exceed the insurance limitations provided for in the Agreement, necessitating the filing of this Cross-Complaint.” (Id. at 4:23–25.)

Moving Defendant’s proposed cross-complaint alleges against Dart International the following causes of action: (1) Equitable Indemnity; (2) Express Indemnity; (3) Contribution; and (4) Declaratory Relief. (Ex. B to Taylor Decl.) The Court notes that no opposition has been filed against the instant motion. Accordingly, the Court finds that Moving Defendant is acting in good faith, and therefore, in the interest of justice, Moving Defendant may file its proposed cross-complaint against Dart International.

CONCLUSION

The unopposed motion is granted. Moving Defendant to separately file its proposed Cross-Complaint within 20 days of this order.