Judge: Audra Mori, Case: 21STCV24207, Date: 2022-12-23 Tentative Ruling

Case Number: 21STCV24207    Hearing Date: December 23, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiffs Barry F. Stone, Individually, and as Successor-in-Interest to the Estate of Kamryn Stone, and Kristie Campbell-Stone (collectively, “Plaintiffs”) filed this action against defendants Rose Bowl Operating Company (“RBOC”), ABM Industries Incorporated, Don Wayne Davenport (“Davenport”), and Kyonne Gardner (“Gardner”) for damages relating to the alleged wrongful death of Decedent Kamryn Stone (“Decedent”).  Plaintiff has filed a Request for Dismissal dismissing ABM Industries Incorporated, and thereafter filed an Amendment to Complaint naming ABM Industry Groups, LLC (“ABM”) as Doe 1.  The complaint alleges Decedent was at the Rose Bowl stadium on September 14, 2019, in the course and scope of his employment, when he was fatally attacked after a football game at the stadium. 

At this time, Defendant ABM moves for an order permitting it to file a cross-complaint against Davenport and Gardner, who allegedly have been criminally charged with the murder of the decedent; the decedent’s employer, Cyndy's Cleaning Service; and Roes 1 through 50 (collectively, “Cross-Defendants”) for equitable indemnity, express indemnity, comparative indemnity, declaratory relief, equitable apportionment of fault, and contribution.  The motion is unopposed.

2. Motion for Leave to File Cross-Complaint

A cross-complaint against any of the parties who filed the initial complaint or cross-complaint against the cross-complainant must be filed before or at the same time as the answer to the initial complaint or cross-complaint, which answer must be filed within 30 days of service of the complaint or cross-complaint.  (CCP §§ 412.20(a)(3), 428.50(a), 432.10.)  Any other cross-complaint may be filed at any time before the court has set a trial date.  (CCP §428.50(b).) 

If a party fails to file a cross-complaint within the time limits described above, he or she must obtain permission from the court to file the cross-complaint.  (CCP §§ 426.50, 428.50(c).)  Leave to file a mandatory cross-complaint must be granted absent bad faith.  Silver Organizations, Ltd. v. Frank (1990) 217 Cal.App.3d 94, 99.  Leave to file a permissive cross-complaint need only be granted in the interest of justice.  §428.50(c).

Here, ABM states that at the time of the incident Decedent was in the course and scope of his employment with Cyndy's Cleaning Service when Decedent was fatally attacked by Davenport and Gardner.  ABM asserts that it has tendered its defense to Cyndy's Cleaning Service based upon a master subcontractor agreement wherein Cyndy's Cleaning Service agreed to defend, indemnify, and hold ABM harmless from all claims that arise or relate to services provided by Cyndy's Cleaning Service.  ABM contends that despite diligent efforts, it has not received a response to its tender.  Further, ABM avers it is in the interest of justice for it to assert its claims against Davenport and Gardner for the attack on Decedent in this action.

The complaint and ABM’s proposed cross-complaint arise from the same incident and should be litigated together.  There is no evidence ABM has been especially dilatory in seeking to file the cross-complaint.  Moreover, trial is currently set for June 28, 2023, and there is no showing that any party will be prejudiced by the cross-complaint. 

ABM’s motion for leave to file the cross-complaint is unopposed and granted.  ABM is ordered to file a separate copy of the cross-complaint within five days. 

Defendant ABM is ordered to give notice. 

PLEASE TAKE NOTICE:

·       The Court is not available to hear oral argument on this date.  If the parties do not submit on the tentative and want oral argument, the hearing will have to be continued, and the parties must work with the clerk to find an available date for the continuance.

• 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 23^rd day of December 2022