Judge: Carolyn M. Caietti, Case: 37-2022-00031802-CU-BC-CTL, Date: 2023-09-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 31, 2023

09/01/2023  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited  Breach of Contract/Warranty Motion Hearing (Civil) 37-2022-00031802-CU-BC-CTL ROLLING HILLS RANCH COMMUNITY ASSOCIATION VS HETHCOAT [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Leave to File Cross Complaint, 08/11/2023

Defendant Michael Hethcoat's Motion to File a Cross-Complaint is DENIED.

Defendant's request for judicial notice is granted and notice will be taken to the extent permitted. (ROA 64.) Defendant's motion is late as it was not filed and served 16 court days before the hearing. (C.C.P., § 1005(b).) Even if the Court considers the merits, the motion must still be denied.

First, Defendant has not provided a copy of the proposed cross-complaint. (See, Cal. Rules of Ct., rule 3.1324(a)(1) (dealing with an analogous motion to amend pleadings).) This is problematic for several reasons.

First, it precludes the Court from fully evaluating whether it is a compulsory or permissive cross-complaint. Defendant's moving papers implies it is a compulsory cross-complaint. (ROA 63, at p. 2:16-18.) If it is a compulsory cross-complaint, C.C.P. section 426.50 provides: 'A party who fails to plead a cause of action subject to the requirements of this article, whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave to amend his pleading, or to file a cross-complaint, to assert such cause at any time during the course of the action. The court, after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to amend the pleading, or to file the cross-complaint, to assert such cause if the party who failed to plead the cause acted in good faith. This subdivision shall be liberally construed to avoid forfeiture of causes of action.' A court may deny leave to file a compulsory cross-complaint only where there is substantial evidence that the defendant is acting in bad faith. (Silver Organizations Ltd. v. Frank (1990) 217 Cal.App.3d 94, 100.) 'Bad faith' is '[t]he opposite of 'good faith,' generally implying or involving actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by honest mistake ..., but by some interested or sinister motive[,] ...

not simply bad judgment or negligence, but rather ... the conscious doing of a wrong because of dishonest purpose or moral obliquity; ... it contemplates a state of mind affirmatively operating with furtive design or ill will. [Citation.]' [Citations.]' ' (Silver, supra, 217 Cal.App.3d at 100; accord, Gherman v. Colburn (1977) 72 Cal.App.3d 544, 559-560 (concluding court properly denied motion to file compulsory cross-complaint made on day of trial when permitting cross-complaint would have deprived Calendar No.: Event ID:  TENTATIVE RULINGS

3007289  44 CASE NUMBER: CASE TITLE:  ROLLING HILLS RANCH COMMUNITY ASSOCIATION VS  37-2022-00031802-CU-BC-CTL plaintiff of right to jury trial and finding conduct showing that a proposed cross-complaint is 'merely a tactical, strategic maneuver' may constitute evidence of bad faith).) Here, Defendant has not met his burden. As background, Defendant filed four cross-complaints. After filing the initial cross-complaint, Defendant filed three amended complaints without seeking leave from the Court or a stipulation from Plaintiff. (C.C.P., § 472(a).) Defendant then requested dismissal of the cross-complaint, which the Court entered. (ROA 35 – Request for Dismissal filed Jan. 27, 2023.) Defendant's moving papers do not explain the previous cross-complaints, the dismissal, nor any 'oversight, inadvertence, mistake, neglect or other cause' to file the cross-complaint. Defendant also does not address whether he acted in good faith. At most, Defendant maintains the case is in its 'infancy,' even though it is over a year old and trial is in six months. Defendant also contends no prejudice will result if the Court grants his request.

Collectively however, bad faith is shown. Only in reply, Defendant addresses the eight-month delay between the dismissal of his last cross-complaint and this motion. He cites Plaintiff's efforts to meet and confer with him on its demurrer to the latest cross-complaint for why he dismissed the last cross-complaint. Plaintiff was entitled to meet and confer and its doing so is not a sufficient basis for the delay. Defendant, as a party representing himself in propria persona is to be treated like any other party and is entitled to the same, but no greater consideration that other litigants and attorneys. (Tanguilig v. Valdez (2019) 36 Cal.App.5th 514, 520.) The delay and why leave was not sought sooner is not addressed, nor does Defendant offer what changed since the meet and confer/dismissal that caused him to seek the cross-complaint relief again and file this motion.

Further, Defendant did not articulate how his proposed causes of action state affirmative relief against Plaintiff. Rather, Defendant does not dispute the facts alleged in his declaration concern prior litigation from a settled case and that he 'is merely bringing the fact of the matter that all sums due from defendant to plaintiff raised by plaintiff in this lawsuit were paid in full up to April 1, 2021, which plaintiff is attempting to collect from defendant in the instant lawsuit.' (Reply, at p. 4:4-7.) Second, Defendant's failure to provide a copy of the proposed cross-complaint also precludes the Court and parties from evaluating whether Defendant intends to sue other parties. It appears from Defendant's declaration he 'will name other parties defendant believe may be jointly or severally responsible for damages suffered by defendant. And further supported a cause of action for conspiracy to collude.' (ROA 66 – Declaration of Michael Hethcoat, at ¶ 38.) 'A greater showing of 'interest of justice' is required to obtain leave to file a cross-complaint against a codefendant or some third person not yet a party to the action. Here, the court will be concerned that the cross-complaint not unreasonably burden and complicate plaintiff's lawsuit with cross-actions and third parties.' (Weil & Brown, Cal. Prac. Guide: Civ.

Proc. Before Trial (The Rutter Group, June 2023 Update) § 6:565.) Third, the Court cannot review what causes of action are to be alleged. There are special rules related to indemnity against condominium homeowners associations. 'No cross-complaint for indemnity on comparative fault principles is permitted against a condo homeowners association suing for damage to it or its members.' (Weil & Brown, supra, at § 6:522, citing Civ. Code, § 5985.) Based on the complaint, Plaintiff is a condominium homeowners association. It is unclear if Defendant seeks indemnity, but notably, he states the cross-complaint will 'assert valid causes of action for apportionment of fault and/or contribution...' (ROA 63 – Memo., at p. 3:10-12.) Even though C.C.P. section 426.50 must be liberally construed to avoid forfeiture of the causes of action, taken as a whole, doing so is not appropriate on this record.

Comparatively, if the proposed cross-complaint is permissive rather than compulsory, leave to file a permissive cross-complaint may be granted 'in the interest of justice.' (C.C.P., § 428.50(c).) 'Permission to file a permissive cross-complaint is solely within the trial court's discretion.' (Crocker National Bank v. Emerald (1990) 221 Cal.App.3d 852, 864.) Here, if it is a permissive cross-complaint, leave is not in the interests of justice for the reasons stated. The Court exercises its discretion to deny leave.

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3007289  44 CASE NUMBER: CASE TITLE:  ROLLING HILLS RANCH COMMUNITY ASSOCIATION VS  37-2022-00031802-CU-BC-CTL For these reasons, the motion is DENIED.

If the tentative ruling is confirmed without modification, the minute order will be the Court's final order.

The clerk of the court is ordered to serve notice of the Court's final order.

Plaintiff is reminded to comply with Department 70's Policies and Procedures and to provide courtesy copies of all motion paperwork.

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