Judge: Anne Richardson, Case: 22STCV00001, Date: 2024-03-19 Tentative Ruling

DEPARTMENT 40 - JUDGE ANNE RICHARDSON - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call. 

Case Number: 22STCV00001    Hearing Date: March 19, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

I. Background

A. Pleadings

Plaintiff Qeetoya Lay sues Defendants Defendant International Realty and Investments (the dba for K S Bennett Enterprises, Inc.), Shoushan Movsesian, Ruth P. Isaacs (as an individual and as trustee of the Exemption Trust of the Isaac Trust), Ralph W. Isaacs (as an individual and as trustee of the Isaac Trust), Ralph W. Isaacs Jr. (as an individual and as trustee of the Isaac Trust), and Does 1 through 50 pursuant to a January 3, 2022 Complaint.

The Complaint alleges claims of (1) Breach of Contract, (2) Breach of the Covenant of Quiet Enjoyment, (3) Breach of Warranty of Habitability, (4) Negligence, (5) Private Nuisance, (6) Violation of California Civil Code Section 1942.4, (7) Fraud, (8) Violation of Unfair Business Practices, (9) Intentional Infliction of Emotional Distress, and (10) Violations of Rent Escrow Account Program (Chapter XVI).

These claims arise from allegations that during her tenancy at 3910 Coco Avenue, Los Angeles, California 90008 (the Property)—i.e., real property owned, operated, or are otherwise connected to Defendants—Plaintiff reported, and Defendants failed to remediate, uninhabitable conditions despite citations from Los Angeles housing authorities. These conditions include structural hazards, nuisance, inadequate sanitation, lack of weather protection, lack of maintenance, electrical issues, plumbing issues, and heating and ventilation issues.

On March 2, 2022, the Complaint and summons were served on Defendants K S Bennett Enterprises, Inc. (Bennett Enterprises) dba International Realty and Investments, Ruth Isaacs, Ralph Isaacs Sr., and Ralph Isaacs Jr.

On March 6, 2022, the Complaint and summons were served on Defendant Shoushan Movsesian.

On April 26, 2022, Defendant Ruth Isaacs filed an Answer to Complaint.

B. Relevant Procedural Background

On June 6, 2022, the Court held a case management conference (CMC), at which time the Court set an Order to Show Cause (OSC) Re: Status of Default/Responsive Pleadings for hearing on August 5, 2022, a date to which the CMC was also continued.

On August 5, 2022, no judge being available, the Clerk continued the CMC to October 18, 2022.

That same day, Plaintiff Lay filed and the Clerk entered a request for dismissal of Defendants Shoushan Movsesian, Ralph Isaacs Sr., and Ralph Isaacs Jr. from all causes of action in the Complaint, without prejudice, thus leaving Ruth Isaacs and Bennett Enterprises as the sole operative Defendants.

On October 18, 2022, the Court held the CMC, which was attended only by counsel for Plaintiff and for Defendant Ruth Isaacs. The Court set alternative dispute resolution, final status conference, and trial dates.

On February 2, 2023, the Clerk gave notice of case reassignment from the Honorable David Sotelo (Ret.) to the Honorable Anne Richardson, presiding.

That same day, Plaintiff Lay filed a proof of service showing service of the notice of case reassignment on Defendant Ruth Isaacs.

On October 26, 2023, Bennett Enterprises made its first appearance in the case by filing a statutorily late—but thus far unchallenged—Answer.

C. Motion Before the Court

On February 22, 2024, Bennett Enterprises filed a motion for leave to file a cross-complaint in this action alleging (1) Breach of Contract, (2) Express Indemnification, (3) Equitable Indemnification, (4) Equitable Contribution, and (5) Declaratory Relief against Defendant Shoushan Movsesian, as trustee of the Isaacs Trust Dated 4/17/1985, and Roes 1 through 50, inclusive.

The motion was served on counsel for Plaintiff Lay via email at the address appearing for Plaintiff’s counsel in the Complaint, and the motion was served on counsel for Defendant Ruth Isaacs, Ralph Isaacs Sr., and Shoushan Movsesian via email at the address appearing for counsel in the April 26, 2022, Ruth Isaacs’ Answer—though the Court notes that no notice of appearance exists in the record noting counsel’s representation of Shoushan Movsesian, and both Ralph Isaacs and Shoushan Movesian have been dismissed.

Defendant Bennett Enterprises’ unopposed motion is now before the Court.

II. Motion for Leave to File Cross-Complaint Against Co-Defendant: GRANTED.

A. Timeliness

The defendant can file the cross-complaint as a matter of right any time before the court sets a date for trial if the cross-complaint is brought against a co-defendant or third party. (Code Civ. Proc., 428.50, subd. (b).) The defendant must obtain leave to file a cross-complaint any time after that date, even if the court later changes or vacates the trial date. (See Code Civ. Proc., § 428.50, subd. (c); Looney v. Superior Court (1984) 160 Cal.App.3d 719, 722-23.) However, the defendant cannot file a cross-complaint after judgment is entered on the complaint. (See City of Hanford v. Superior Court, supra, 208 Cal.App.3d at p. 587.)

Here, this motion was filed on February 22, 2024, after the statutory time to file an answer but prior to judgment being entered in this action, for which reason the motion is timely but requiring leave of this Court.

B. Permissive Cross-Complaint

1. Legal Standard

A cross-complaint against a co-defendant or third party is always permissive. (See Code Civ. Proc., § 428.10, subd. (b); Insurance Co. of N. Am. v. Liberty Mut. Ins. (1982) 128 Cal.App.3d 297, 303.) A defendant can file a cross-complaint against a codefendant or third party if the defendant’s cause of action (1) arises from the same transaction, occurrence, or series of transactions or occurrences as the action brought against the defendant or (2) asserts a claim, right, or interest in the property or controversy that is the subject of the action brought against the defendant. (Code Civ. Proc., 428.10, subd. (b); see, e.g., Paragon Real Estate Group v. Hansen (2009) 178 Cal.App.4th 177, 186-87 [defendant’s cross-complaint against unrelated co-defendants for equitable indemnity was proper under Code of Civil Procedure section 428.10].) If the defendant files a cross-complaint under section 428.10, subdivision (b), it can join with that claim any other causes of action it has against that party. (See Code Civ. Proc., § 428.30.) Thus, the defendant can join all claims it may have against a cross-defendant if just one claim arises from the same subject matter as the underlying suit. (See Code Civ. Proc., §§ 428.10, subd. (b), 428.30.) However, if the unrelated claims would be difficult to try together, they may be severed for trial purposes under Code of Civil Procedure section 1048, subdivision (b).

2. Interests of Justice

As a permissive cross-complaint, the defendant must show that leave to file should be granted in the interests of justice. (Code Civ. Proc., 428.50, subd. (c).) The defendant should also show that it did not delay in seeking leave. (See, e.g., Crocker Nat’l Bank v. Emerald, supra, 221 Cal.App.3d at p. 864 [cross-plaintiff provided no explanation for delay in seeking permission to file proposed cross-complaint].)

Here, Defendant Bennett Enterprises shows the interests of justice support granting this motion. Counsel explains that KS Bennett “has recently provided … [counsel] [with] certain background documents regarding the subject property,” “including “the property management agreement between [Bennett Enterprises] and Defendant Shoushan Movsesian, as Trustee of the Isaacs Trust Dated 4/17/1985, the owner of the subject property,” pursuant to which Movsesian had agreed to defend and indemnify Bennett Enterprises in actions such as these, which Movsesian has failed to do. (Mot., Smith Decl., ¶¶ 1-5.)

This representation sufficiently explains the grounds for why Bennett Enterprises’ counsel did not more promptly file this motion on or after October 27, 2023, after Bennett Enterprises filed its answer—though the Court notes that counsel’s “recently provided” qualification is not otherwise elaborated to a specific date.

Bennett Enterprises however did engage in substantial delay in filing the Answer, which was filed 19 months and 20 days after service of the summons and Complaint, well beyond the 30-day statutory timeframe. (Code Civ. Proc., § 412.20, subd. (a)(3).)

Bennett Enterprises’ motion is GRANTED.

III. Conclusion

Defendant K S Bennett Enterprises, Inc. dba International Realty and Investments’ Motion for Leave to File Cross-Complaint is GRANTED. The Proposed Cross-Complaint attached to the motion should be filed with the Court within 5 court days.