Judge Christian R. Gullon, Case Number: 23PSCV01376, Date: 2024-04-18 Tentative Ruling

Judge: Christian R. Gullon, Case: 23PSCV01376, Date: 2024-04-18 Tentative Ruling

Defendant Ralphs Grocery Company’s Motion for Leave to File Cross-Complaint is GRANTED.

This is a negligence case arising from a motor vehicular accident that occurred on 9/15/22 when Plaintiff was rear-ended resulting in fractures and cuts.

On May 5, 2023, Plaintiff JUSTINE U. USONGO filed suit against Defendants RALPHS GROCERY COMPANY (“Ralphs”) and SOKHIM YEN for General Negligence.

On June 12, 2023, Defendant Ralphs Grocery Company (erroneously sued as “Ralphs Grocery Company, a Corporation”) filed its answer.

Generally, a party must 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. (Code Civ. Proc., § 428.50(a).)The court may grant leave to file a cross-complaint if the failure to plead a cause of action was the result of oversight, inadvertence, mistake, neglect, or other cause. (Code Civ. Proc., § 426.50) (emphasis added).

Where the proposed cross-complaint arises out of the same transaction as plaintiff’s claim, the court must grant leave to file the cross-complaint as long as defendant is acting in good faith. (Id.) If the cross-complaint is compulsory, the defendant must allege that its failure to timely plead the claim was in good faith. “Good faith” is established by proving a negative—namely, there is no substantial evidence that the defendant acted in bad faith. (Silver Orgs. V. Frank (1990) 217 Cal.App.3d 94, 100 (Silvers).) A finding of bad faith requires evidence of “dishonest purpose, moral obliquity, sinister motive, furtive design or ill will.” (Ibid.) Evidence of oversight, inadvertence, neglect, or mistake is, by itself, insufficient to establish bad faith. (Id. at p. 99.)

Indeed, courts at best have only a “modicum of discretion” in denying leave to file a compulsory cross-complaint. (Gherman v. Colburn (1977) 72 Cal.App.3d 544, 550; Sidney, v. Superior Court. (1988) 198 Cal.App.3d 710, 718; c.f., Silver Organizations Ltd. v. Frank (1990) 217 Cal.App3d 94, 98-99 [rejecting view the court may exercise discretion in the denial of a motion to file a compulsory cross-complaint; to the extent discretion is allowed to deny the motion, there must be substantial evidence[1] to support the trial court's decision.)

Ralphs moves to file a cross-complaint (CC) against Plaintiff for (1) motor vehicle negligence and (2) general negligence (Motion p. 9 of 16 of PDF, Ex. A) based upon ongoing discovery as to the cause of the accident.

More specifically, Ralphs explains that the California Highway Patrol Traffic Crash Report indicates that Plaintiff allegedly caused the accident by making an unsafe lane change. (See Opp. Ex. 1, p. 14 of 16 of PDF [‘Cause’ as identified in the police report; see also Motion, Ex. A [Proposed CC], p. 11 of 16 of PDF P12 [“[Plaintiff] was attempting to suddenly exit the SR 60 highway at the Phillips Ranch Road exit from Lane No. 2 to such an extent that she could not safely operate her vehicle.”].) This was further corroborated during Plaintiff’s 1/26/24 deposition (deposition which was continued at Plaintiff’s request) wherein Plaintiff attested that she never saw the Ralphs Truck prior to, during or after the accident. Thus, Ralphs seeks to file a CC against Plaintiff for property damage and loss of use of its truck.

In Plaintiff’s opposition, Plaintiff argues that “Defendant received the Police Traffic Report on or about June 23, 2023 and waited for 9 extra months before asking the court for leave to file cross complaint. Such failure is unreasonable and subjects the plaintiff to unfairness. Thus, the action of the defendant should be construed by the court as bad faith.” (Opp. p. 4:21-24.)

First, Plaintiff, aside from a conclusory statement, makes no real showing of bad faith. While Ralphs waiting for 9 months from the receipt of the police report to file the motion could be a result of bad faith, it could very well be the result of other causes, other reasons which Plaintiff has the burden of crafting and showing, but she has failed to do. To the contrary, Ralphs appears to be diligently litigating the matter by engaging in discovery since October 2023 and has made its motion based upon newly discovered facts.

Second, Plaintiff, aside from a conclusory statement, makes no real showing of prejudice. How Plaintiff would be prejudiced from granting of a motion is unclear. If anything, it would arguably be would be prejudicial to Plaintiff to deny the motion as Defendant would have to file a separate lawsuit to address its claims, leading to increases expenses/costs, resources, and time expended by both parties.

Even Plaintiff’s citations support a finding that the court must grant the motion.[2]

For example, Plaintiff cites to Gherman v. Colburn (1977) 72 Cal.App.3d 544. In Gherman, on the day of trial, defendants, via a cross-complaint, sought accounting claim with respect to the joint venture they had claimed did not exist. The Gherman court, denying the CC request, noted that where a “defendant fails to act for a period of over 30 days and waits until the first day of trial, such conduct may be interpreted as evidence of a lack of good faith especially when coupled with the long history of litigation between the parties, which demonstrates that both sides were jockeying for position over the right to a jury trial... defendants were not acting in ‘good faith’ but that the motion for leave to file a cross-complaint was merely a tactical, strategic maneuver to deprive plaintiffs of a right to a jury trial” (Id. at p. 559-560, emphasis added..) Here, however, the CMC is barely set for 4/18, far ways from a trial[3] and there is no showing that Ralphs has made any substantive misrepresentations to the court. Plaintiff’s reliance upon Foot’s Transfer & Storage Co. v. Superior Court (1981) 114 Cal. App. 3d 897 (Foot’s) is equally unavailing. In Foot’s, the party waited 23 months after service of the complaint, and 16 months after it had filed its answer to the complaint, before asserting the right to file a cross-complaint. The appellate court determined that the motion for leave was improperly denied because no matter how belated the request was, there was no showing of any substantial injustice or prejudice by the filing of a cross-complaint. (Id. at pp. 903-904.) Here, however, no such considerable length of time of has passed as the deposition but only corroborated the police report a few months ago.[4]

Based on the foregoing, absent any showing of bad faith, the court must grant the motion.

[1] Substantial evidenced is defined is evidence ... “ ‘of ponderable legal significance, ... reasonable in nature, credible, and of solid value.’” (Silver, supra, 217 Cal.App.3d at p. 99 quoting Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873.)

[2] It is unclear whether Plaintiff is using the cases to support its position or undermine its position because Plaintiff cites to Silver Organizations Ltd. v. Frank (1990) 217 Cal. App. 3d 94, 99 to argue that the rule regarding the court’s “modicum of discretion” as in Gherman and Foot’s Transfer, infra, was criticized in Silver Organizations Ltd.

[3] For this reason, Plaintiff’s argument that the motion is made “at this late stage of the case” (Opp. p. 5:7-9) is unfounded.

[4] And as it may take an attorney a couple of months to file a motion, there is arguably no unreasonable delay as the information was learned 1/26/24 and the motion was filed less than 3/22/24, less than two months later.