Judge: Cherol J. Nellon, Case: 21STCV12565, Date: 2023-10-18 Tentative Ruling

Case Number: 21STCV12565    Hearing Date: April 17, 2024    Dept: 14

Park Construction

Case Background

Plaintiff alleges that it did construction work for which it was not paid. Defendant alleges that Plaintiffs failed to do the work that was agreed upon.

Complaint

            On March 1, 2022, Plaintiff filed its Second Amended Complaint (“SAC”) for (1) Breach of Contract; (2) Foreclosure of Mechanic’s Lien; (3) Goods and Services Rendered; (4) Quantum Meruit; (5) Fraud; and (6) Negligent Misrepresentation against Defendants Sang & Sang, LLC (“Sang”) and DOES 1-20.

            On June 23, 2022, the court sustained Defendant Sang’s demurrer to the sixth cause of action, without leave to amend.

            On July 5, 2022, Defendant Sang filed its Answer.

Cross-Complaint

            On April 15, 2022, Defendant Sang filed its First Amended Cross-Complaint for Breach of Contract against Plaintiff and Cross-Defendants Brian Park, Charlie Park (collectively “Parks”), and ROES 1-20.

On May 17, 2022, Plaintiff and Cross-Defendant Parks filed their joint Answer.

On May 23, 2023, Cross-Complainant Sang voluntarily dismissed Cross-Defendant Charlie Park, without prejudice.

On May 30, 2023, Cross-Defendant Charlie Park filed his Memorandum of Costs.

On March 7, 2024, Cross-Complainant Sang voluntarily dismissed Cross-Defendant Brian Park, without prejudice.

Trial Date

            Jury Trial is currently set for April 29, 2024.

Instant Motion

            Plaintiff/Cross-Defendant now moves this court for an order permitting them to file a Cross-Complaint against a new party.

Decision

            The motion is GRANTED. The cross-complaint is to be filed by 4 pm on April 24, 2024.

            Trial on the cross-complaint will be severed from trial on the complaint, with trial on the complaint to occur first, as scheduled. Trial on the cross-complaint will be scheduled at the close of trial on the complaint.

            Discovery deadlines on the current pleadings will not be altered. Discovery deadlines on the new cross-complaint will be pegged to the date later chosen for trial of those claims.

Governing Standard

Code of Civil Procedure § 428.50 provides that:

“(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.”

A cross-complaint against a person not previously a party is “permissive” as opposed to compulsory. “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.

Discussion

            This motion presents the somewhat unusual prospect of a Plaintiff with a live complaint seeking to also file a cross-complaint. The call-and-response of this case makes the request make a little more sense. Plaintiff sued Defendants to collect payment due for work performed. Defendants cross-complained against Plaintiff for failure to perform the work agreed upon in their contract. Plaintiff now seeks to recover, on an indemnity theory, from the subcontractor who was assigned to the task in question.

            As a matter of policy, the law prefers the filing of cross-complaints in construction cases over the filing of new actions. Valley Circle Estates v. VTN Consolidated (1983) 33 Cal.3d 604, 613-614. No one involved would gain by forcing Plaintiff to file a new, separate action against their subcontractor, an action which would doubtless be related to this one and trail behind it. See Id. at 615. Defendant Sang takes the position that, even if they have nothing to gain from a new action, they certainly have something to lose from a new cross-complaint.

            Defendant Sang’s point has some merit. This case has been pending for over three years. The trial date is 12 days away. Resolution of the dispute between Plaintiff and Defendant Sang is imminent; adding a new pleading and a new party at this point would snatch that prospect away catapult it into the next year.

            However, the court has the power to mitigate that prejudice by exercising its discretion to sever the pleadings under Code of Civil Procedure § 1048(b). Defendant Sang can still have the trial towards which it has been working all this time, Plaintiff can preserve its indemnity claims, and the court avoids the administrative difficulty of multiplying actions.

Conclusion

            For clear policy reasons which apply in this case, the law favors the filing of cross-complaints in construction cases. Therefore, the motion is GRANTED. The cross-complaint is to be filed by 4 pm on April 24, 2024.

However, the claims currently at issue between the parties, which are finally nearing trial, can be clearly separated from the claims against prospective third parties. Therefore, the new cross-complaint will be severed from the current pleadings. The current pleadings will be tried first, as currently scheduled. Trial on the new cross-complaint will be scheduled thereafter.

            Discovery deadlines on the current pleadings will not be altered. Discovery deadlines on the new cross-complaint will be pegged to the date later chosen for trial of those claims.