Judge: Anne Hwang, Case: 21STCV28134, Date: 2024-05-22 Tentative Ruling

Case Number: 21STCV28134    Hearing Date: May 22, 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 July 30, 2021, Plaintiffs Kenny Reese and Michele Bias (“Plaintiffs”) filed a complaint against Defendants Uber Technologies, Inc., John Doe, Adrienne Lombard, Cynthia Lombard, and Does 1 to 50 for negligence relating to a motor vehicle accident.

On September 26, 2022, Uber Technologies, Inc. (“Uber”) filed an answer.

Uber now moves for leave to file a cross-complaint against Defendants Adrienne Lombard and Cynthia Lombard (“Lombard Defendants”). Uber also requests a trial continuance. Plaintiffs and Lombard Defendants oppose,[1] and Uber 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

As an initial matter, the proposed cross complaint is not compulsory since it is not asserted against Plaintiffs, but rather the Lombard co-defendants. (See Code Civ. Proc. § 428.50(a).) The proposed cross-complaint asserts the following causes of action against the Lombard Defendants: negligence, equitable indemnity, contribution and apportionment of fault, and declaratory relief. (Teas Decl. ¶ 25, Exh. A.) The cross-complaint pertains to the subject vehicle accident in Plaintiffs’ complaint. Therefore, it arises out of the same occurrence.

Uber is seeking leave to file this cross complaint because the Lombard Defendants settled with Plaintiffs before this litigation and thus, never appeared in this action, and have not participated in discovery.[2] Uber appears to file the cross complaint so that the Lombards may be subject to discovery in the future.

In opposition, Plaintiffs argue Uber was dilatory in bringing this motion. The Lombard Defendants contend that on March 14, 2024, Cynthia Lombard served responses to Uber’s written discovery, Uber deposed Adrienne Lombard on August 10, 2023, and noticed Cynthia Lombard’s deposition for May 24, 2024. (Fassonaki Decl. ¶¶ 3–4.) Therefore, it appears some voluntary discovery has taken place. The Lombard Defendants also ask the Court to continue this motion to be heard in conjunction with their motion to determine good faith settlement, scheduled for July 3, 2024.

Here, allowing leave to file the cross complaint is in the interest of justice since Uber contends that the Lombards are responsible for the majority of Plaintiffs’ injuries. Plaintiffs were allegedly passengers in an Uber vehicle when the Lombards’ vehicle backed into them. The Court declines to continue the instant motion, finding it will only result in further delays. Additionally, Plaintiffs and the Lombard Defendants fail to show they were prejudiced by the delay in filing this motion for cross-complaint. Therefore, the motion for leave to file the cross-complaint is granted.

Uber also separately moves to continue trial.

Legal Standard 

¿“Continuances are granted only on an affirmative showing of good cause requiring a continuance.”¿ (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 823.)¿ A trial court has broad discretion in considering a request for a trial continuance.¿ (Pham v. Nguyen (1997) 54 Cal.App.4th 11, 13-18.)¿ California Rules of Court, rule 3.1332 sets forth factors for the Court to consider in ruling on a motion to continue trial.¿ 

“To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain.” (Cal. Rules of Court, rule 3.1332(a).)  

“A party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered.” (Cal. Rules of Court, rule 3.1332(b).) 

“Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include: 

1.      The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances; 

2.      The unavailability of a party because of death, illness, or other excusable circumstances; 

3.      The unavailability of trial counsel because of death, illness, or other excusable circumstances;  

4.      The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice; 

5.      The addition of a new party if: 

A. The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or 

B. The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party’s involvement in the case; 

6.      A party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or 

7.      A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.”  

(Cal. Rules of Court, rule 3.1332(c).) 

“In ruling on a motion or application for continuance, the court must consider all the facts and circumstances that are relevant to the determination. These may include: 

1.      The proximity of the trial date; 

2.      Whether there was any previous continuance, extension of time, or delay of trial due to any party; 

3.      The length of the continuance requested; 

4.      The availability of alternative means to address the problem that gave rise to the motion or application for a continuance; 

5.      The prejudice that parties or witnesses will suffer as a result of the continuance; 

6.      If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; 

7.      The court’s calendar and the impact of granting a continuance on other pending trials; 

8.      Whether trial counsel is engaged in another trial; 

9.      Whether all parties have stipulated to a continuance; 

10.     Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and 

11.     Any other fact or circumstance relevant to the fair determination of the motion or application. 

(Cal. Rules of Court, rule 3.1332(d).) 

Analysis

Uber seeks to continue trial and all related dates from August 19, 2024 to November 18, 2024. Uber argues it needs more time to conduct discovery, noting that co-defendant Aguilar was served in August 2023, and Cynthia Lombard’s deposition will be taken on May 24, 2024. However, even with the filing of the cross-complaint, it appears Uber has conducted some discovery with the Lombard defendants. (See Reply, 4.) Therefore, Uber fails to show that it requires additional time. The Court notes that there is still roughly two months to conduct discovery and Uber first appeared in this action on September 26, 2022. As a result, the request for a continuance is denied.

CONCLUSION AND ORDER

Accordingly, the Court GRANTS in part the Motion for Leave to File a Cross-Complaint and Request to Continue Trial. Uber is ordered to file and serve its proposed cross-complaint within ten (10) days of the date of this Order. The request for a trial continuance is denied.

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