Judge: Christian R. Gullon, Case: 23PSCV02984, Date: 2025-03-04 Tentative Ruling

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Case Number: 23PSCV02984    Hearing Date: March 4, 2025    Dept: O

Tentative Ruling

DEFENDANT STATE OF CALIFORNIA’S MOTION FOR LEAVE TO FILE A CROSS-COMPLAINT is GRANTED.

Background

This is a premise liability case. The complaint alleges the following. On May 12, 2023, plaintiff Mario Frenette (Plaintiff) was riding his 2019 Harley-Davidson motorcycle on the SR-57 when the front of his tire struck and/or lodged into a pothole. Plaintiff lost control of the motorcycle and fell into traffic. As a result, Plaintiff sustained a tibia fracture, requiring surgery and the implementation of hardware into his leg.

On September 27, 2023, Plaintiff filed suit against City of Diamond Bar, County of Los Angeles, State of California, and Does 1 through 100 for (1) Dangerous Condition of Public Property.

On October 3, 2023, Plaintiff served the County of Los Angeles via personal service. On October 5, 2023, Plaintiff served the City of Diamond Bar via personal service. On October 6, 2023, Plaintiff served the State of California via personal service.

On January 9, 2024, the People of the State of California, acting by and through the Department of Transportation, erroneously sued herein as “State of California” (State of California) filed its answer.

On January 16, 2024, Plaintiff dismissed Diamond Bar and the County of Los Angeles.

On January 24, 2025, State of California filed this instant motion and a proposed cross-complaint.

On February 19, 2025, Plaintiff filed a non-opposition.

Legal Standard

“A party who fails to plead a cause of action subject to the requirements of this article, whether through over-sight, 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.”¿(Code Civ. Proc., § 426.50.)¿ The court shall grant such a motion if the moving party acted in good faith. (Code Civ. Proc., § 426.50.) A party shall obtain leave of court to file a cross-complaint if it is not concurrently filed with the answer or at any time before the court sets a trial date. Code Civ. Proc., § 428.50, subd. (c).) “Leave may be granted in the interest of justice at any time during the course of the action.” (Code Civ. Proc., § 428.50, subd. (c).)

If a cross-complaint is compulsory, leave must be granted if the cross-complainant is acting in good faith, so as to avoid forfeiture of the causes of action. (Code Civ. Proc., § 426.50; see Silver Organizations, Ltd. v. Frank (1990) 217 Cal.App.3d 94, 101 [concluding that the late filing of the motion to file a compulsory cross-complaint absent some evidence of bad faith is insufficient evidence to support denial of the motion].) To be considered a compulsory cross-complaint, the related cause of action must have existed at the time defendant served its answer to the complaint. (Weil & Brown, California Practice Guide (2008), Civil Procedure Before Trial §6:516; see also Crocker Nat’l Bank v. Emerald (1990) 221 Cal.App.3d 852, 864.) If the cross-complaint is not compulsory, but rather is permissive, the Court has sole discretion whether to grant or deny leave. (Crocker Nat’l Bank v. Emerald (1990) 221 Cal.App.3d 852, 864.)

¿ 

The determination that the moving party acted in bad faith must be supported by substantial evidence. (Foot's Transfer & Storage Co. v. Superior Court¿(1980) 114 Cal.App.3d 897 [evidence insufficient to support trial court's denial of motion to file cross-complaint notwithstanding that defendant waited twenty-three months after service of complaint and sixteen months after filing answer before asserting right to file cross-complaint, where nothing in record suggested that defendant was unusually reprehensible with regard to delay, plaintiff waited for two years to file action, and plaintiff’s counsel equivocated concerning stipulation allowing the filing of cross-complaint at same time counsel conducted discovery concerning the claim defendant sought to assert in the cross-complaint].)¿¿¿ 

At minimum, a¿very strong showing of bad faith on the part of the defendant is required before a court is justified in denial of leave to file or amend a cross-complaint.¿(Sidney v. Superior Court¿(1988)¿198 Cal.App.3d 710,¿718.)¿¿The burden of showing bad faith rests on the party opposing the allowance of the cross-complaint.¿ (Silver Organizations Ltd. v. Frank¿(1990) 217 Cal.App.3d 94, 99.)¿¿ 

A determination that the petitioner acted in bad faith may be premised on “substantial injustice or prejudice” to the opposing party.¿(Foot's Transfer & Storage Co. v. Superior Court, 114 Cal.App.3d 897, 903; see¿also¿Gherman v. Colburn¿(1977) 72 Cal.App.3d 544, 558-559 [stating that leave was properly denied when the defendant’s motion “was merely a tactical strategic maneuver to deprive plaintiffs of a right to a jury trial”].) 

Discussion

Defendant State of California moves to file a cross-complaint against Griffin Company – FBD Vanguard Construction In. Joint Venture (Griffith) for implied indemnity, contribution, comparative fault, declaratory relief, and express indemnity. (Motion p. 3; Le Decl. ¶ 5, Exh. C.)  In support of its motion, State of California argues that the accident occurred within the project limits of ongoing construction by Griffith, near Post Mile 4.4. (Motion p. 3.) On April 28, 2020, Giffith accepted a bid and later signed a contract to perform construction work in this location. (Motion p. 3.) Griffith was “to perform concrete pavement, concrete barrier and electrical work.” (Motion p. 3.) The contract requires Griffith “to indemnify and to defend claims brought against the State in accordance with the 2018 Standard Specifications which were made a part of contract.” (Motion pp. 3-4; L Decl. ¶ 3, Exh. A.)

State of California claims that they “only recently became aware of and located the [c]ontract with Griffith” after they began to look for contracts related to the area of the accident. (Motion p. 5.) After discovering the contract, the State of California filed this motion, demonstrating there was no intentional delay or bad faith. (Motion p. 5.)

State of California further asserts that granting this motion would further the interests of justice as it will cause no additional prejudice to Plaintiff or his case.  

Here, the court finds that the causes of action asserted in State of California’s cross-complaint are compulsory, because these related causes of action existed at the time State of California served its answer to the complaint. Although State of California did not assert this point, the court comes to this conclusion because the contract between State of California and Griffith concerning the area in which the accident occurred existed at the time State of California filed its answer.

The court also finds that State of California did not file this compulsory cross-complaint before or at the same time as its answer due to oversight. State of California admits to discovering the contract after filing its answer. (Motion p. 5.)

As such, leave may be granted in the interest of justice at any time during the action and if the request is made in good faith. The court agrees that the motion will further the interest of justice and not cause prejudice to Plaintiff, because trial has not been set and parties are in the discovery stage. The court also agrees that the cross-complaint was filed in good faith. Nothing suggests bad faith and Plaintiff’s non-opposition does not assert bad faith.

Conclusion

Based on the foregoing, Defendant State of California’s Motion for Leave to File a Cross-Complaint is Granted.