Judge: Ashfaq G. Chowdhury, Case: 23GDCV00332, Date: 2024-07-12 Tentative Ruling

Case Number: 23GDCV00332    Hearing Date: July 12, 2024    Dept: E

Hearing Date: 07/12/2024 – 8:30am
Case No: 23GDCV00332
Trial Date: 01/27/2025
Case Name: GOHAR THOMAS v. ONNI 700 BRAND LIMITED PARTNERSHIP, a limited partnership

[TENTATIVE RULING ON MOTION FOR LEAVE TO FILE CROSS-COMPLAINT]

RELIEF REQUESTED
“Defendant ONNI 700 BRAND LIMITED PARTNERSHIP (“Defendant”) will and hereby does move this court for an order permitting the filing of a Cross-Complaint against third-party CITIBANK, N.A. (“Cross-Defendant”). Accordingly, a copy of the proposed Cross-Complaint is attached as “Exhibit A” to the Declaration of Michael A. Diaz.

Defendant seeks leave to file the Cross-Complaint under Code of Civil Procedure sections 426.50, 428.10, and 428.50. This Motion is made on the grounds that the proposed Cross-Complaint arises out of the same transaction, occurrence, or series of transactions or occurrences as alleged in Plaintiff GOHAR THOMAS’ Complaint. Moreover, the Cross-Complaint was previously not filed due to Defendant’s oversight, and Cross-Defendant has recently rejected Defendant’s tender for indemnity and defense. Lastly, filing the proposed Cross-Complaint will serve the interests of justice and promote efficient resolution of all claims and defenses in a single civil action.

This Motion is based on this Notice of Motion, the supporting Memorandum of Points and Authorities, the Declaration of Michael A. Diaz, the attached proposed Cross-Complaint, the papers and pleadings on file, and such other or further argument or evidence as may be presented to the Court at or before the hearing.”

(Mot. p. 1-2.)

BACKGROUND
On 02/17/2023, Plaintiff filed the instant action against Defendant, Onni 700 Brand Limited Partnership. The Complaint alleges causes of action for general negligence and premises liability.

The allegations pertain to an incident wherein Plaintiff allegedly slipped and fell due to an uneven floor surface while using the common entry walkway to access the subject premises.

PROCEDURAL ANALYSIS

Moving Party: Defendant, Onni 700 Brand Limited Partnership
Responding Party: No Opposition

Moving Papers: Notice/Motion; Proposed Order

Opposition Papers: No Opposition

Reply Papers: No Reply

Proof of Service Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP § 1005(b)): Ok
Proper Address (CCP §1 013, § 1013a, § 1013b): Ok

ANALYSIS
428.10
Under CCP § 428.10:

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. Nothing in this subdivision authorizes the filing of a cross-complaint against the plaintiff in an action commenced under Title 7 (commencing with Section 1230.010) of Part 3.

(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.

(CCP § 428.10(a)-(b).)

Defendant, Onni 700 Brand Limited Partnership, seeks leave to file a cross-complaint against Citibank, N.A.,, an entity which  is not currently a party to this action, for implied indemnity, equitable indemnity, equitable contribution, express contractual indemnity, breach of contract, and declaratory relief.

Defendant moves under § 428.10(b), which requires the cause of action asserted in the cross-complaint to arise out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him.

Here, Defendant explains how Plaintiff’s allegations arise from a slip-and-fall injury due to an alleged dangerous condition at Defendant’s property. Defendant’s counsel states that Citibank, N.A. was a tenant at the subject property and contends that Citibank is liable for any negligent use and/or maintenance at the subject property. (Diaz Decl. ¶ 3.) Defendant explains that it seeks to cross-complain against Citibank because it will seek indemnity from Citibank should Plaintiff prevail on her Complaint, as well as recovery for the cost of defense. (Diaz Decl. ¶ 4.)

The Court finds Defendant’s arguments availing that the causes of action in the proposed cross-complaint arise out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action brought against Defendant.

Further, “Cross-Complaints for comparative equitable indemnity would appear virtually always transactionally related to the main action.” (Time for Living, Inc. v. Guy Hatfield Homes/All American Development Co. (1991) 230 Cal.App.3d 30, 38.)

Section 428.50
Under CCP § 428.50:

(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.

(CCP § 428.50(a)-(c).)

Here, Defendant does not meet the requirements of § 428.50(a) because Defendant filed its Answer on 4/24/2023. Further, Defendant does not meet the requirements of § 428.50(b) because this Court already set a date for trial.

Therefore, Defendant here must obtain leave to file the proposed cross-complaint under § 428.50(c).

CCP § 428.50(c) indicates that leave may be granted in the interest of justice at any time during the course of the action.

Defendant argues that the interests of justice warrant leave to file the cross-complaint because if Plaintiff was in fact injured, Defendant argues that Cross-Defendant’s negligent use and/or maintenance of the subject property was the substantial intervening cause of Plaintiff’s alleged injuries. Defendant also argues that leave to file the cross-complaint will allow Plaintiff’s entire Complaint to be resolved in a single case. Defendant’s counsel’s declaration further states that Defendant did not previously file the cross-complaint due to Defendant’s oversight. (Diaz Decl. ¶ 5.) Further, Diaz states that the proposed cross-defendant recently rejected Defendant’s tender for indemnity and defense. (See Diaz Decl. ¶ 5.)

This Court finds that Defendant has demonstrated that leave may be granted in the interest of justice.

TENTATIVE RULING
Defendant’s motion for leave to file a cross-complaint is GRANTED.

The Court reminds Defendant of the service obligations set forth in CCP § 428.60:

A cross-complaint shall be served on each of the parties in an action in the following manner:

(1) If a party has not appeared in the action, a summons upon the cross-complaint shall be issued and served upon him in the same manner as upon commencement of an original action.

(2) If a party has appeared in the action, the cross-complaint shall be served upon his attorney, or upon the party if he has appeared without an attorney, in the manner provided for service of summons or in the manner provided by Chapter 5 (commencing with Section 1010) of Title 14 of Part 2 of this code.

(CCP § 428.60(1)-(2).)