Judge: Cherol J. Nellon, Case: 23STCV15030, Date: 2024-02-28 Tentative Ruling

Case Number: 23STCV15030    Hearing Date: February 28, 2024    Dept: 14

Kneeland v. Roman Sales
Case Background

 

Plaintiff alleges that Defendants refused to accommodate her disability, fired her, then refused to pay her the severance pay agreed upon.

 

On June 28, 2023, Plaintiff filed her Complaint for (1) Disability Discrimination, (2) Disability Harassment, (3) Failure to Reasonably Accommodate a Disability, (4) Failure to Engage in the Good Faith Interactive Process, (5) FEHA Retaliation, (6) Labor Code § 98.6 Retaliation, (7) Failure to Issue Accurate Itemized Wage Statements, (8) Failure to Pay All Vested Vacation Time on Termination, (9) Waiting Time Penalties, and (10) Unfair Competition against Defendants Roman Sales, Inc. (“Sales”), Michael Roman (“Roman”), and DOES 1-50.

 

On August 8, 2023, Defendants Sales and Roman filed their joint Answer.

 

            No trial date has yet been set.

 

Instant Motion

 

            Defendants Sales and Roman now move this court for an order permitting them to file a Cross-Complaint against Plaintiff for recording conversations without consent.

 

Decision

 

            The motion is GRANTED. Defendants are to file their Cross-Complaint by March 6, 2024.

 

Governing Standard

 

            Code of Civil Procedure § 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.”

 

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.”

 

“Under California's compulsory cross-complaint statute, a party is prohibited from asserting a claim if, at the time the party answered a complaint in a prior suit, it failed to allege in a cross-complaint any related cause of action against the plaintiff. (§ 426.30, subd. (a) (§ 426.30(a).)) The phrase “ ‘[r]elated cause of action’ ” is defined as “a cause of action which arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint.” (§ 426.10, subd. (c).) Additionally, in order for a cross-complaint to be compulsory, the related cause of action must have existed when the answer was served. (§ 426.30(a).) If it was not, the failure to assert it is not a bar under the statute.” ZF Micro Devices, Inc. v. TAT Capital Partners, Ltd. (2016) 5 Cal.App.5th 69, 81.

 

“The legislative mandate is clear. A policy of liberal construction of section 426.50 to avoid forfeiture of causes of action is imposed on the trial court. A motion to file a cross-complaint at any time during the course of the action must be granted unless bad faith of the moving party is demonstrated where forfeiture would otherwise result. Factors such as oversight, inadvertence, neglect, mistake or other cause, are insufficient grounds to deny the motion unless accompanied by bad faith.” Silver Organizations Ltd v. Frank (1990) 217 Cal.App.3d 94, 98-99 (emphasis added). There must be a “strong showing” of bad faith supported by substantial evidence. Sidney v. Superior Court (1988) 198 Cal.App.3d 710, 718.

 

Discussion

 

            Plaintiff opposes this motion on three bases. First, she argues that Defendants have failed to comply with California Rules of Court Rule 3.1324. But, as Defense points out in their reply, Rule 3.1324 does not apply to this motion. This is a motion for leave to file a new pleading, not a motion for leave to amend an existing one.

 

            Second, Plaintiff argues that the cross-complaint will be barred by the statute of limitations. This is not the time for the court to decide whether Plaintiff has a defense to the claims raised. Even if Plaintiff is right and ultimately will prevail on a statute of limitations defense, the issue is whether Defendant has acted in bad faith, not whether the claim is likely to succeed. The situation might be different were the proposed cross-complaint obviously fatally defective in some incurable way, but that is not the state of the present record.

 

            Third and finally, Plaintiff argues that this will delay the litigation. That may prove to be true. However, this case is only eight months old. No trial date has been set. Any delay that may occur will not be significant.

 

Conclusion

 

            This is a compulsory cross-complaint. Defendants have a right to file it, and there is not sufficient evidence to show that they are exercising that right in bad faith. Therefore, the motion is GRANTED. Defendants are to file their Cross-Complaint by March 6, 2024.