Judge: Christopher K. Lui, Case: 23STCV000357, Date: 2024-09-19 Tentative Ruling

Case Number: 23STCV000357    Hearing Date: September 19, 2024    Dept: 76

            Plaintiffs allege that Defendant’s employee negligently pumped a few hundred gallons of caustic into a peroxide tank at Plaintiff Tri-Star’s premises, which set off a chemical reaction that caused a fireball to erupt, followed by a geyser of caustic and peroxide mixture that damaged the premises.

Defendant Brenntag Pacific, Inc. moves for leave to file a Cross-Complaint.

TENTATIVE RULING

            Defendant Brenntag Pacific, Inc.’s  motion for leave to file a cross-complaint is GRANTED. Defendant is to file a stand-alone copy of the Cross-Complaint today. The Cross-Complaint is deemed served as of the date of this order.

Motion For Leave To File Cross-Complaint

Defendant Brenntag Pacific, Inc. moves for leave to file a Cross-Complaint. 

Civ. Proc. Code, § 428.50 provides: 

(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.

(Civ. Proc. Code, § 428.50(a)-(c)[bold emphasis added].)

Civ. Proc. Code § 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 Civ. Proc., § 426.50.)

            Leave to file a cross-complaint may be granted in the interest of justice at any time during the action. (Civ. Proc. Code, § 428.50(c). 

            “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 Orgs. v. Frank (1990) 217 Cal.App.3d 94, 99 [bold emphasis and underlining added].)

            Here, Defendant has explained why the request to file a Cross-Complaint is inly being made now: Brenntag first learned about facts which gave rise to the cross-claims in May and June 2024 at the depositions of Tri-Star corporate representatives. There is no indication the delay in seeking leave to file the Cross-Complaint was made in bad faith. A copy of the proposed Cross-Complaint is attached to the Declaration of Nicole N. Wentworth as Exh. A.

            Plaintiff’s counsel S. Young Lim filed an untimely declaration in opposition, claiming that this motion could have been avoided if Defendant agreed to allow Plaintiff to file a First Amended Complaint. However, both motions require leave of court at this point of the litigation, so Plaintiff’s argument is without merit.

            The motion for leave to file a cross-complaint is GRANTED. Defendant is to file a stand-alone copy of the Cross-Complaint today. The Cross-Complaint is deemed served as of the date of this order.