Judge: Anne Hwang, Case: 23STCV11366, Date: 2024-10-08 Tentative Ruling

Case Number: 23STCV11366    Hearing Date: October 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 May 19, 2023, Plaintiffs Ely Lopez (“Ely”), Florinda Lopez (“Florinda”), and Duera De Cux (“Duera”) (collectively, “Plaintiffs”) filed an action against Defendant He Liu (“Defendant” or “He”) stemming from an alleged automobile collision that took place on May 21, 2022.

            Defendant filed an Answer on July 10, 2023.  On March 28, 2024, Defendant filed a Notice of Change of Handling Attorney.

            On August 27, 2024, Defendant filed the instant Motion for Leave to File Cross-Complaint (“Motion”).  No opposition has been filed.

LEGAL STANDARD

“A party against whom a cause of action has been asserted in a complaint or cross-complaint may file a cross-complaint setting forth either or both of the following:

(a)   Any cause of action he has against any of the parties who filed the complaint or cross-complaint against him…

(b)   Any 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.)  After the trial date has been set, a party seeking to file a cross-complaint must obtain leave of court.  (Code Civ. Proc., § 428.50, subd. (b).)

A cross-complaint may be either compulsory or permissive.  Compulsory cross-complaints are those involving causes of action that arise out of the same transactions or occurrences as the causes of action which the plaintiff alleges in his or her complaint.  (Code Civ. Proc., § 426.10, subd. (c).)  To be considered compulsory, the causes of action must exist at the time an answer to the original cross-complaint is required.  (Code Civ. Proc., § 426.30. subd. (a).)  All other cross-complaints are permissive.  (Code Civ. Proc., § 428.10.)  Failure to bring a compulsory cross-complaint results in waiver of the right to bring the causes of action in a separate action.  (Code Civ. Proc., § 426.30.)

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.)

“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.”  (Silver Organizations, Ltd. v. Frank (1990) 217 Cal.App.3d 94, 98-99.)  Bad faith involves conduct, not prompted by an honest mistake, oversight, or neglect, but by some sinister motive or conscious wrongdoing because of dishonest purpose or moral obliquity.  (Id. at 99-100.)  Bad faith contemplates a state of mind affirmatively operating with furtive design or ill will.  ¿(Ibid.)

DISCUSSION

            Defendant He moves for an order granting leave to file a cross-complaint against Plaintiff Ely Lopez.

            Defendant argues that the Cross-Complaint is compulsory, as it arises out of the same occurrence as the Complaint.  The action stems from a two-car collision that occurred on May 21, 2022, involving Plaintiffs Ely, Florinda, and Duera, in one vehicle, and Defendant He, in the other vehicle.  (Cloud Decl. ¶ 2.)  Defendant’s prior counsel mistakenly failed to file a Cross-Complaint for indemnity and contribution against Plaintiff Ely, the driver of the vehicle, at the time Defendant’s Answer was filed.  (Id. at ¶ 5.)  The proposed Cross-Complaint is attached as Exhibit A.  (Id. at ¶ 8, Ex. 8.)  Defense counsel asserts that Plaintiffs’ counsel has stipulated to continue the trial date to allow time for the filing of a cross-complaint and an answer.  (Id. at ¶¶ 9-10, Ex. B.)

The Court finds that Defendant is moving to file a compulsory cross-complaint which arises out of the same motor vehicle collision alleged in the Complaint.  Moreover, Defendant has shown that he is acting in good faith as his failure to file a timely cross-complaint was due to prior counsel’s mistake.  Plaintiffs have not opposed the Motion.

Accordingly, the Court grants Defendant’s Motion.

CONCLUSION AND ORDER

Therefore, Defendant He Liu’s Motion for Leave to File Cross-Complaint is GRANTED.  Defendant is ordered to file the proposed Cross-Complaint within ten (10) days of the Court’s order.

Defendant shall provide notice of the Court’s ruling and file a proof of service of such.