Judge: Anne Hwang, Case: 20STCV35050, Date: 2023-10-17 Tentative Ruling

Case Number: 20STCV35050    Hearing Date: February 23, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

On March 15, 2022, Plaintiff Michael Greenwood (“Plaintiff”) filed the operative first amended complaint (“FAC”) asserting causes of action for assault, battery, intentional infliction of emotional distress, negligence, and negligent hiring and supervision. Plaintiff alleges he was performing his duties as a security guard at a cargo facility at 18055 Harmon Ave. Carson, California, when he was physically assaulted by Defendant Fermin Antonio Mazariego Jr. (FAC ¶ 7, 10-11.) Plaintiff sued Defendant Cartage West, Inc. (“Cartage”) for negligence and negligent hiring and supervision based on Mazariego’s alleged actions and alleges it owned the premises where the incident occurred (FAC ¶ 9).

On October 17, 2023, the Court granted Cartage’s motion for summary adjudication regarding the negligent hiring, supervision, and retention cause of action, but denied the motion regarding the negligence cause of action.

             Cartage now moves for leave to file a cross complaint against Plaintiff’s employer, Andy Frain Services, Inc. Plaintiff opposes and Cartage replies.

LEGAL STANDARD

A cross-complaint against any of the parties who filed the initial complaint or cross-complaint against the cross-complainant must be filed before or at the same time as the answer to the initial complaint or cross-complaint, which answer must be filed within 30 days of service of the complaint or cross-complaint.  (Code Civ. Proc. §§ 412.20(a)(3), 428.50(a), 432.10.)  Any other cross-complaint may be filed at any time before the court has set a trial date.  (Code Civ. Proc. §428.50(b).)   

If a party fails to file a cross-complaint within the time limits described above, he or she must obtain permission from the court to file the cross-complaint.  (Code Civ. Proc., §§ 426.50, 428.50(c).)  Leave to file a mandatory cross-complaint must be granted absent bad faith. (Silver Organizations, Ltd. v. Frank (1990) 217 Cal.App.3d 94, 99.)  Leave to file a permissive cross-complaint need only be granted in the interest of justice. (Code Civ. Proc., § 428.50(c).) The court must grant leave to file a mandatory cross-complaint so long as the defendant is acting in good faith.  (Code Civ. Proc., § 426.50.) 

A party against whom a cause of action has been asserted in a complaint may file a cross complaint setting forth “[a]ny cause of action he has against a person alleged to be liable thereon, whether or not such person is already a party to the action, if the cause of action asserted in his cross-complaint (1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause brought against him.” (Code Civ. Proc. § 428.10(b).)

DISCUSSION

Cartage brings this motion to file a cross complaint against Andy Frain Services, Inc. (“Andy Frain”), which was Plaintiff’s employer during the events of his complaint. Cartage alleges that Andy Frain contributed to Plaintiff’s injuries by requiring him to work after the incident, causing him to not receive immediate care, and eventually terminating his employment. (Parnell Decl. ¶ 6.) Cartage states it learned of these facts during discovery but did not want to incur the expense of bringing the causes of actions before the mandatory settlement conference and summary judgment motion. Cartage argues that in light of the $1,400,000 in damages Plaintiff is claiming, the interests of justice permit it to file the cross complaint in order for Andy Frain to contribute to any injuries it caused or exacerbated.

In opposition, Plaintiff first argues there is no legal basis for a cross complaint against Plaintiff’s employer under Difko Admin. (US) Inc. v. Superior Court (Difko) (1994) 24 Cal.App.4th 126. Under the worker’s compensation system, “a third party defendant cannot directly seek indemnification against the employer if the judgment against it represents more than the third party's ‘share’ of the damages under comparative fault principles. (Lab. Code § 3864.)” (Id. at 133.) Instead, the third-party defendant may seek an offset, but only if certain conditions are met.

“In Witt v. Jackson, supra, the Supreme Court held 1) that an employer whose negligence is concurrent with the negligence of a third party, both joining to cause injury to the employee, cannot secure reimbursement from the third party for sums paid to the employee as workers' compensation benefits, and 2) that if the employee sues the third party in tort, any damages awarded to the employee must be reduced by the amount of any such workers' compensation payments, to prevent a double recovery.”

(Id. at 129.)

After Witt v. Jackson, the Supreme Court modified the rule to conform with California’s comparative negligence doctrine, concluding: “A [negligent] employer may be allowed credit or reimbursement [for workers' compensation benefits paid to an employee] but only to the extent the employer's liability in workers compensation exceeds its share of responsibility for the employee's full tort damages.” (Id. at 129–30 [quoting Associated Construction & Engineering Co. v. Workers' Comp. Appeals Bd. (1978) 22 Cal.3d 829, 847].) The court in Difko observed that it was unclear how a third-party defendant may assert an offset: whether through a cross complaint or answer. (Id. at 130.) The court declined to follow a previous case allowing a cross complaint and instead decided that the proper mechanism was through an affirmative defense in an answer where any of the following scenarios exist: where “the employer does not seek reimbursement for benefits provided to the employee by an independent action against the third party defendant, or by joining in the employee's action as a party plaintiff, or by filing in the employee's action a complaint in intervention, or applying therein for a first lien against the employee's recovery, if any.” (Id. at 134–35.)

Here, it does not appear that Andy Frain joined in Plaintiff’s action or filed an independent action for reimbursement of benefits. In reply, Cartage cites to unpublished cases to refute Plaintiff’s argument under Difko, arguing that an employer who violates a statute, fundamental public policy, or exceeds the risks inherent in an employment relationship is not covered by worker’s compensation. (See Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 902–03.) Here, the proposed cross complaint alleges that Andy Frain was independently negligent by not giving aid to Plaintiff after the incident and forcing him to continue working. Therefore, Cartage argues that this incident falls outside the scope of worker’s compensation.

Plaintiff also argues that discovery is now closed in this case and trial is set for June 5, 2024, and thus, Cartage was dilatory in not bringing this cross complaint sooner. In reply, Cartage argues it was not dilatory since it conducted Plaintiff’s deposition on March 23, 2023, and later served subpoenas on Andy Frain and medical providers. Therefore, between the seven months it learned of Andy Frain’s potential liability and filed this motion, it was focused on mediation and the summary judgment motion, and thus, not dilatory.

The Court notes that trial and all related dates were continued to June 5, 2024. (Min. Order, 1/9/24.) Therefore, discovery is currently open. In addition, while there has been some delay, the Court does not find the delay to be sufficient to deny the motion. Finally, because Cartage asserts that the Andy Frain’s conduct may fall outside worker’s compensation, the Court grants leave to file the cross complaint in the interest of justice.

CONCLUSION AND ORDER

Accordingly, the Court GRANTS Defendant Cartage West, Inc.’s motion for leave to file a cross-complaint. Cartage West, Inc. is ordered to file and serve its proposed cross-complaint within ten (10) days of the date of this Order.

Moving party shall provide notice of the Court’s order and file a proof of service of such.