Judge: Audra Mori, Case: 20STCV41148, Date: 2022-12-16 Tentative Ruling

Case Number: 20STCV41148    Hearing Date: December 16, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

On October 27, 2020, Plaintiff Alireza Saei (“Plaintiff”) filed this action against Defendant Javier Sanchez (“Sanchez”) for damages arising out of a motor vehicle accident.  Defendant filed an answer to the complaint on November 20, 2020.  

On January 7, 2022, Defendant attempted to file a cross-complaint against Plaintiff.  The cross-complaint also sought to add Jaime Ramirez (“Ramirez”), who was a passenger in Defendant’s vehicle at the time of the accident, to the action as a cross-complainant.  On March 4, 2022, Plaintiff’s motion to strike the cross-complaint was granted, as it was not filed in conformity with CCP § 428.50.  The ruling was without prejudice to Sanchez and Ramirez seeking leave to file a cross-complaint. 

Thereafter, Sanchez and Ramirez filed a motion for leave to file a cross-complaint for negligence and negligence per se against Plaintiff, which was granted on May 9, 2022.  Sanchez and Ramirez were ordered to file a separate copy of the cross-complaint within five days.  Sanchez and Ramirez, however, did not file their cross-complaint until July 11, 2022.

Plaintiff now moves for an order striking Sanchez’s and Ramirez’s cross-complaint filed on July 11, 2022.  Sanchez and Ramirez oppose the motion, and Plaintiff filed a reply.

Plaintiff argues that Sanchez and Ramirez failed to comply with the Court’s May 9, 2022 order and untimely filed the cross-complaint.  Alternatively, Plaintiff argues that that Sanchez and Ramirez and their counsel should be sanctioned $1,635. 

In opposition, Sanchez and Ramirez assert that as a result of excusable neglect and inadvertence, their counsel failed to calendar the filing deadline for the cross-complaint after the May 9, 2022 hearing because of a clerical oversight in calendaring the due date.  Sanchez and Ramirez request relief under CCP § 473(b) for their counsel’s failure to file the cross-complaint within the time ordered.  They argue they are entitled to file the cross-complaint, as they have compulsory negligence claims against Plaintiff.  Further, Sanchez and Ramirez contend that they did not have sufficient time to oppose the motion, and that sanctions are unwarranted against them.

In reply, Plaintiff argues that Sanchez’s and Ramirez’s reasons for not filing the cross-complaint within the directed time are invalid, and Plaintiff asserts that Sanchez and Ramirez improperly filed the cross-complaint without leave to amend.  Additionally, Plaintiff contends the moving papers provided sufficient notice to Sanchez and Ramirez. 

As an initial matter, regarding Sanchez’s and Ramirez’s argument that the motion did not provide the required notice to them under CCP § 1005, there is no proof of service attached the moving papers.  Consequently, although the motion was filed on September 28, 2022, the Court cannot determine whether the motion was properly served on Sanchez and Ramirez.[1]  While this alone provides sufficient grounds for the Court to deny the motion, the Court will also address the motion on the merits. [2]

2. Motion for Strike Cross-Complaint

California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper.  (CCP §§ 435; 436(a).)  Motions may also target pleadings or parts of pleadings which are not filed or drawn in conformity with applicable laws, rules or orders.  (CCP § 436(b).) 

CCP § 428.50 states:

(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.

In this case, Sanchez and Ramirez were granted leave to file a cross-complaint against Plaintiff on May 9, 2022.  Sanchez and Ramirez were further ordered to file a separate copy of the cross-complaint within five days of that ruling.  Sanchez and Ramirez did not file such until July 11, 2022.  Nonetheless, Sanchez’s and Ramirez’s cross-complaint concerns the same accident and facts already at issue between the parties, and the complaint and cross-complaint must be litigated together.  Further, Ramirez, who was Sanchez’s passenger at the time of the accident, is an indispensable party to the action, and Plaintiff does not dispute that the cross-complaint is otherwise compulsory.  Accordingly, the Court exercises its discretion to accept Sanchez’s and Ramirez’s late filed cross-complaint.  (See Contreras v. Blue Cross of California (1988) 199 Cal.App.3d 945, 948 [court had discretion to grant or deny motion to dismiss action after plaintiff failed to amend complaint within time permitted by leave to amend]; see also Harlan v. Department of Transportation (2005) 132 Cal.App.4th 868, 873-74 [trial court had discretion to accept late filed amended pleading without a noticed motion].)

Furthermore, Plaintiff does not identify any prejudice that Plaintiff will suffer if Sanchez and Ramirez are allowed to file their cross-complaint.  Denying the motion now will only require Sanchez and Ramirez to again file a motion for leave to file a cross-complaint, which would potentially serve to delay the proceedings even further.  Therefore, in the interest of cutting to the heart of the matter, the Court will exercise its discretion in this instance to accept the cross-complaint.  (See Silver Organizations Ltd. v. Frank (1990) 217 Cal.App.3d 94, 99 [trial court must grant a motion to file a compulsory cross-complaint “at any time during the course of the action” absent substantial evidence of bad faith.]; see also City of Hanford v. Superior Court (1989) 208 Cal.App.3d 580, 587 [The purpose of cross-complaints “is to have a complete determination of a controversy among the parties in one action, thus avoiding circuity of action and duplication of time and effort.”].)  Additionally, the Court will continue the current January 20, 2023 trial briefly to ensure Plaintiff has sufficient time to respond to the cross-complaint and prepare for trial.  

            Based on the foregoing, the motion to strike is denied.  Sanchez’s and Ramirez’s cross-complaint is deemed filed this date.  The January 20, 2023 trial date is continued to ______________ at 8:30 a.m. in Department 31 of the Spring Street Courthouse.  The January 6, 2023 Final Status Conference is continued to _______________ at 10:00 a.m. in Department 31.  All discovery and expert cutoff dates are to be based on the new trial date.  The parties must expect no further continuances.  They should plan all motion and discovery practice accordingly. 

            Lastly, while the Court understands Plaintiff’s frustration with the delay in filing the cross-complaint, Plaintiff’s request for sanctions of $1,635 pursuant to CCP § 177.5 is denied.  This provision expressly states, “A judicial officer shall have the power to impose reasonable money sanctions, not to exceed fifteen hundred dollars ($1,500), notwithstanding any other provision of law, payable to the court, for any violation of a lawful court order by a person, done without good cause or substantial justification.”  (Emphasis added.)  While Sanchez and Ramirez have admittedly acted neglectfully and their failure to timely file the Cross-Complaint was displeasing, the Court declines to exercise its authority to impose the sanctions exceeding $1500 that would be payable to the Court.   

Plaintiff is ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 16^th day of December 2022