Judge: Anne Hwang, Case: 22STCV23510, Date: 2023-08-25 Tentative Ruling

Case Number: 22STCV23510    Hearing Date: August 25, 2023    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

MOTION

Defendants Robert Bowcock and Patricia Bowcock (“the Bowcocks”) move the Court for an order granting leave to file a cross-complaint (“Cross-Complaint”) against Defendant Wendy Snyder (“Snyder”) and Does 1 through 20, inclusive.

On September 13, 2021, Plaintiff William Noren filed a Complaint against Snyder, Case No. 21STCV33636 (“Snyder Action”), for negligence related to injuries and damages he sustained when he fell into a moat surrounding a pool on August 22, 2020, during a social gathering held at the property located 1021 Belleville Court in Claremont, California. Plaintiff alleged the property was then owned by the Bowcocks and Snyder was the host in control of the event at the property.

On July 20, 2022, Plaintiff Noren filed a complaint against the Bowcocks in a separate action, Case No. 22STCV23510 (“Bowcock Action”), alleging they were liable for events alleged in the Snyder Action for indemnity, equitable contribution, and reimbursement of defense fees and costs. On August 15, 2022, the Court deemed the Snyder Action and the Bowcock Action related within the meaning of CRC Rule 3.300(a), noting the Snyder Action (Case No. 21STCV33636) was the earlier filed case.  (8/15/22 Minute Order; 8/15/22 Nunc Pro Tunc Order.)  On November 30, 2022, the Court ordered the Snyder Action and the Bowcock Action consolidated into a single action and designated the Bowcock Action, Case No. 22STCV23510, as the Lead Case. (11/30/22 Minute Order.)

On October 7, 2022, the Bowcocks filed an Answer to the complaint against them but did not file a Cross-Complaint against Snyder.

On June 1, 2023, the Bowcocks filed the instant motion for leave to file a Cross-Complaint together with an Ex Parte Application requesting the Court shorten time for the hearing date, which at the time of filing was scheduled for April 12, 2024.  The Court denied the Ex Parte Application but advanced the hearing on the motion to July 19, 2023. (6/7/23 Minute Order.)  On July 5, 2023, the Court, on its own motion, continued the hearing on the instant motion to August 25, 2023.  (7/5/23 Minute Order.)

In the instant motion, the Bowcocks argue that they did not act in bad faith by not filing a Cross-Complaint at the time they answered, rather their failure to do so was due to an oversight. The Bowcocks also argue that the parties will not suffer any prejudice from the granting of the motion.

On July 6, 2023, Snyder filed an Opposition to the instant motion arguing that the Bowcocks seek leave to file a Cross-Complaint over a year after they were served with the Complaint and over a year after they served their Answer thereto. Snyder further alleges that the Bowcocks fail to explain their delay in moving to file a Cross-Complaint. Snyder asserts that the Court has broad discretion to deny the motion.

On August 18, 2023, the Bowcocks filed a Reply.

ANALYSIS

          Code of Civil Procedure § 426.30(a) provides, as follows:  “Except as otherwise provided by statute, if a party against whom a complaint has been filed and served fails to allege in a cross-complaint any related cause of action which (at the time of serving his answer to the complaint) he has against the plaintiff, such party may not thereafter in any other action assert against the plaintiff the related cause of action not pleaded.”

Code of Civil Procedure § 428.50 provides:

“(a) 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.

(b) Any other cross-complaint may be filed at any time before the court has set a date for trial.

(c) A party shall obtain leave of court to file any cross-complaint except one filed within the time specified in subdivision (a) or (b). Leave may be granted in the interest of justice at any time during the course of the action.”

            “A party who fails to plead a cause of action subject to the requirements of this article, whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave to amend his pleading, or to file a cross-complaint, to assert such cause at any time during the course of the action. The court, after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to amend the pleading, or to file the cross-complaint, to assert such cause if the party who failed to plead the cause acted in good faith.  This subdivision shall be liberally construed to avoid forfeiture of causes of action.”  (Code Civ. Proc. § 426.50 (emphasis added.).)

            The Court of Appeals has explained: “The legislative mandate is clear. A policy of liberal construction of section 426.50 to avoid forfeiture of causes of action is imposed on the trial court. A motion to file a cross-complaint at any time during the course of the action must be granted unless bad faith of the moving party is demonstrated where forfeiture would otherwise result. Factors such as oversight, inadvertence, neglect, mistake, or other cause, are insufficient grounds to deny the motion unless accompanied by bad faith.” (Silver Organizations Ltd. v. Frank (1990) 217 Cal.App.3d 94, 98–99.) “‘‘Bad faith,’ is defined as ‘[t]he opposite of ‘good faith,’ generally implying or involving actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake . . ., but by some interested or sinister motive[,] . . . not simply bad judgment or negligence, but rather . . . the conscious doing of a wrong because of dishonest purpose or moral obliquity; . . . it contemplates a state of mind affirmatively operating with furtive design or ill will.  [Citation.]’  [Citations.]’  [Citation.]”  (Ibid. at 100.)

A cross-complaint is compulsory if it is transactionally related to the subject matter of the complaint.  (Code Civ. Proc. § 426.10.)  “To be considered a compulsory cross-complaint, a related cause of action must have existed at the time of the service of [the] answer to [the] complaint.”  (Crocker National Bank v. Emerald (1990) 221 Cal.App.3d 852, 864.)  The late filing of a motion for leave to file a compulsory cross-complaint “absent some evidence of bad faith is insufficient evidence to support denial of the motion.”  (Silver Organizations, Ltd. v. Frank, supra, 217 Cal.App.3d at 101.)  “Permission to file a permissive cross-complaint is solely within the trial court’s discretion.”  (Crocker, 221 Cal.App.3d at 864.)

            The Bowcocks assert that they did not file a Cross-Complaint against Snyder at the time they answered the Complaint due to the product of an oversight. (Thai Decl. ¶ 5.) In opposition, Snyder counters that the Bowcocks fail to explain the delay since they have been notified of the action for over a year, participated in discovery, and are aware of Snyder’s identity.

            As a preliminary matter, the Bowcocks’ proposed Cross-Complaint is a compulsory cross-complaint because it arises out of the same “transaction, occurrence, or services of transactions or occurrences” as the causes of action in Snyder’s cross-complaint against the Bowcocks, specifically, the circumstances surrounding Noren’s fall at the property. 

Here, the Bowcocks seek leave to file a Cross-Complaint more than one year after Snyder filed her cross-complaint. Although the Bowcocks’ delay in filing the cross-complaint is attributed to oversight, Code of Civil Procedure § 426.50 does not allow the denial of a motion based on these grounds. (Silver Organizations Ltd. v. Frank, supra, 217 Cal.App.3d at p. 101). The Bowcocks’ delay in seeking leave to file the Cross-Complaint does not suggest fraud, deception, or a sinister motive. Snyder submits no evidence of bad faith. As such, there is no substantial evidence of the Bowcocks’ bad faith.

The Bowcocks also argue that the granting of the instant motion will not interfere with the trial date or prejudice the action. The Bowcocks assert that Snyder will not suffer any prejudice because there is ample time for continued discovery with the trial date scheduled over six months away. (Thai Decl. ¶ 6.) The Bowcocks state that discovery is in the early stages with depositions yet to begin that are only scheduled for Snyder on June 21, 2023. (Id.) In her Opposition, Snyder does not dispute that the action will not be prejudiced by the delayed filing of the Cross-Complaint. Accordingly, the Court finds there has not been a showing that the filing of the Cross-Complaint will result in prejudice.

CONCLUSION AND ORDER

Therefore, the Court grants the Bowcock Parties’ Motion for Leave to File a Cross-Complaint against Snyder.

The Bowcock Parties are ordered to file the proposed cross-complaint within ten (10) days.

The Bowcock Parties are ordered to give notice and file a proof of service of such.