Judge: Anne Hwang, Case: 22STCV31770, Date: 2023-10-23 Tentative Ruling

Case Number: 22STCV31770    Hearing Date: January 8, 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 September 28, 2022, Plaintiffs Carmen Vasquez, Willie Atkins, Sr., and the Carmen Vasquez and Willie Atkins, Sr. Trust (Plaintiffs) filed a complaint against Defendants Jose Hernandez, H-H & S Enterprises, Sunset-Cherokee Plaza, 7-Eleven, Inc., and Does 1 to 100 for negligence surrounding the death of their son, Willie Atkins, Jr. (Decedent). Plaintiffs allege that Jose Hernandez, the employee of a 7-Eleven franchise operated by H-H & S Enterprises, stabbed Decedent on property owned by Sunset-Cherokee Plaza. (Complaint ¶ 17.)    

             Defendant Sunset-Cherokee Plaza, L.P. (SCP) now moves for leave to file a cross-complaint against cross-defendant Jose Hernandez.[1] This motion was initially set for hearing on October 23, 2023. Counsel for Plaintiffs requested to be heard and the matter was taken off calendar because the moving party failed to appear. (Min. Order, 10/23/23.) SCP re-filed this motion. Plaintiffs Carmen Vasquez and Willie Atkins, Sr. (Plaintiffs) oppose and SCP replies. The trial in this case is scheduled for March 26, 2025.

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 the cross-complaint so long as defendant is acting in good faith.  (Code Civ. Proc., § 426.50.) 

Good Faith Settlement

“Under section 877.6, ‘[a]ny party to an action in which it is alleged that two or more parties are joint tortfeasors ... shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff ... and one or more alleged tortfeasors ....’ (§ 877.6, subd. (a)(1).) ‘A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor ... from any further claims against the settling tortfeasor ... for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.’ (§ 877.6, subd. (c).) A good faith settlement determination also reduces the claims against the nonsettling defendants in the amount stipulated by the settlement. (§ 877, subd. (a).) The equitable policies of section 877.6 ‘include both the encouragement of settlements and the equitable allocation of costs among multiple tortfeasors.’” [citation.] (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 959.)

DISCUSSION

SCP’s proposed cross-complaint seeks to hold Hernandez (the other co-defendant) liable to Plaintiffs on theories of comparative indemnity, equitable indemnity, contribution, and implied indemnity. As an initial matter, the proposed cross-complaint is not against Plaintiffs. Accordingly, the Court may grant leave to file the cross-complaint “in the interest of justice at any time during the course of the action.” (Code Civ. Proc. § 428.50.) The Court finds that the proposed cross complaint arises out of the same transaction, occurrence or series of transactions or occurrences.

On July 21, 2023, the Court denied SCPs motion to challenge the good faith of the settlement between Plaintiffs and HH&S and 7-Eleven. On September 29, 2023, the Court signed an order granting the application for determination of good faith settlement between Plaintiffs and HH&S and 7-Eleven. On September 14, 2023, Plaintiffs dismissed Hernandez from the complaint with prejudice.

Plaintiffs argue in opposition that Hernandez’s name was on the Settlement Agreement and Release, and thus any cross complaint against him is barred under section 877.6(c). They contend that Hernandez was not included in the Application because he had not appeared in the case yet. (Opp., 2.) However, SCP notes that the order that the settlement was made in good faith does not mention Hernandez. (See Order Granting Application for Determination of Good Faith, 9/29/23, Min. Order, 7/21/23.) Additionally, counsel for HH&S and 7-Eleven did not purport to represent Hernandez in the settlement. Moreover, the Revised Notice and Application for Determination of Good Settlement by HH&S and 7-Eleven does not purport to apply to Hernandez. (Revised Notice, filed 3/21/23, Serpik Decl. ¶ 2 [“The terms of the settlement are that the Plaintiffs have agreed to a release of all claims arising out of the allegations contained in their Complaint against Defendants 7-Eleven, Inc. and H-H & S Enterprises, Inc.”].)

Plaintiffs attach a letter from counsel for AMCO Insurance Company, HH&S’s insurer. (Spear Decl., Exh. A.) The letter states that Jose Hernandez qualifies as an insured under the policy and must be released as part of any settlement.

While Plaintiffs cite to Cahill for support, there, the trial court’s finding of good faith applied to all parties to the settlement agreement. (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 943–44.) Unlike in Cahill, here, the application for good faith did not explicitly make clear that Hernandez was a party to the settlement, and the Court has not yet addressed any specific objections as to Hernandez.

Therefore, the Court finds that granting Sunset-Cherokee Plaza, L.P. leave to file its proposed cross-complaint as to Jose Hernandez is in the interest of justice.

CONCLUSION AND ORDER

Accordingly, the Court GRANTS Defendant Sunset-Cherokee Plaza, L.P.’s motion for leave to file a cross-complaint. Sunset-Cherokee Plaza, L.P. is ordered to file and serve their proposed cross-complaint within ten (10) days of the date of this Order.

Sunset-Cherokee Plaza, L.P. shall provide notice of the Court’s order and file a proof of service of such.