Judge Ashfaq G. Chowdhury, Case Number: 23GDCV01110, Date: 2024-10-03 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 23GDCV01110, Date: 2024-10-03 Tentative Ruling

Case Number: 23GDCV01110 Hearing Date: October 3, 2024 Dept: E

Hearing Date: 10/03/2024 – 8:30am
Case No: 23GDCV01110
Trial Date: 03/10/2025
Case Name: KATHERINE L. SMITH v. SARAH R. BARNARD, and DOES 1-10 inclusive

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

RELIEF REQUESTED
Defendant, Sarah R. Barnard will move the Court for an order granting leave to file a cross-complaint against Plaintiff Katherine L. Smith. A copy of the proposed Cross-Complaint is attached to this motion as Exhibit A.

This motion is based upon CCP § 428.50(c).

This motion will be further based upon this notice, the attached Memorandum of Points and Authorities, the Declaration of Silvio Nardoni filed herewith; upon the records and files in this action; and upon such further evidence and argument as may be presented prior to or at the time of hearing on the motion.

BACKGROUND
Plaintiff, Katherine L. Smith, filed the instant action on 5/31/2023 against Defendant, Sarah R. Barnard.

Plaintiff alleges that Plaintiff and Defendant acquired the Subject Property as joint tenants on November 23, 2020. (Compl. ¶ 2.) Plaintiff alleges that Smith is the owner of the undivided ½ interest in the Subject Property and that Defendant is the owner of the remaining ½ interest in the Subject Property. (Compl. ¶ 3.)

The Complaint alleges one cause of action for partition and accounting.

Plaintiff alleges that partition by sale of the Subject Property is more equitable than division in kind of the Subject Property because it is unique real property and cannot be physically divided. (Compl. ¶ 8.) Plaintiff alleges the action is brought and partition is sought for the common benefit of the parties and to secure each of their respective interests and rights in the Subject Property. (Compl. ¶ 9.)

PROCEDURAL ANALYSIS

Moving Party: Defendant, Sarah R. Barnard
Responding Party: No Opposition by Plaintiff

Moving Papers: Notice/Motion
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): No – Defendant served the instant moving papers via electronic service. Defendant served Plaintiff’s counsel at the email address of pc@lawbbc.com. On eCourt, Plaintiff’s counsel’s email address is listed as liz@lawbbc.com. At the hearing, this issue should be addressed.

ANALYSIS
Defendant seeks leave to file a cross-complaint against Plaintiff. Defendant argues she is authorized to do this by CCP § 428.10(a).

Under CCP § 428.10(a), “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.” (CCP § 428.10(a).)

Here, Defendant seeks to file a cross-complaint for (1) Breach of Oral Agreement and (2) Constructive Fraud against Plaintiff (who filed the instant action against Defendant).

Defendant states that the Subject Property was sold on May 29, 2024, and the proceeds are being held in a trust account pending further order of the court or agreement of the parties. Defendant states that following the sale of the property, counsel for the parties exchanged offers and demands for distribution of the sale proceeds but could not reach an agreement on the distribution. Defendant states that part of the reason for the lack of success was Plaintiff’s insistence that certain amounts claimed by Defendant are not recoverable as charges against the sale of the proceeds in a partition action.

Defendant argues that she must therefore present these claims as part of her proposed cross-complaint or in a separate action. Defendant argues that the more efficient and expedient course of action is to have the Court decide them in a single proceeding.

Defendant states that the cross-complaint rests upon an oral agreement between Defendant and Plaintiff concerning reimbursement of amounts paid by Defendant to improve the real property, as well as expenses incurred during the period of joint ownership, such as utilities, landscape maintenance, and other similar items.

Defendant also argues the proposed cross-complaint is subject to the time limit imposed by CCP § 428.50(b).

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 11/28/2023. 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.

Here, this Court finds that Defendant has demonstrated that leave should be granted in the interest of justice.

TENTATIVE RULING
Defendant is to address the service issue that the Court called to the parties’ attention above.

If Defendant sufficiently addresses the service issue, Defendant’s motion for leave to file a cross-complaint is GRANTED.

Defendant is ordered to file her Cross-Complaint within 10 days.

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).)