Judge: Craig Griffin, Case: "Doan v. Da Vinci Kitchen Bath & Construction, Inc.", Date: 2023-07-17 Tentative Ruling

The Motion for Leave to File a Cross-Complaint brought by Defendant Da Vinci Kitchen & Bath Construction, Inc. is GRANTED, pursuant to Code of Civil Procedure section 428.50.

Defendant seeks leave to file a cross-complaint against non-party, Home Care & Repair. Inc. (¶2 of Kornoff Declaration and Exhibit A thereto.)  Given the proposed cross-complaint is asserted against a non-party, the complaint is merely permissive.  Per Code of Civil Procedure section 428.10, subdivision (b), a party against whom a cause of action has been asserted may file a cross-complaint setting forth “[a]ny cause of action he has against a person alleged to be liable thereon, whether or not such person is already a party to the action, if the cause of action asserted in his cross-complaint (1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause brought against him.” (Code Civ. Proc., §428.10, subd. (b).)

Here, Counsel indicates that Home Care & Repair, Inc. installed the allegedly defective cabinets that are at issue in this action. (¶3 and ¶5 of Kornoff Declaration.)  Additionally, Counsel states that “[t]hrough documents obtained in discovery, Defendant believes that Home Care has a duty to indemnify Defendant for any and all alleged defects in the work it performed at Plaintiff’s residence.” (¶5 of Kornoff Declaration.)  Moreover, a review of the proposed complaint confirms that Defendant seeks to assert claims for indemnity, contribution and declaratory relief, relating to construction work performed at Plaintiffs’ property. (¶3 of Proposed Cross-Complaint, attached as Exhibit A to Kornoff Declaration.)

The above is sufficient to demonstrate the proposed claims “arise[] out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against Defendants,” as contemplated by Code of Civil Procedure section 428.10, subdivision (b). Indeed, “[c]ross-complaints for comparative equitable indemnity would appear virtually always transactionally related to the main action.” (Time for Living, Inc. v. Guy Hatfield Homes/ All American Development Co. (1991) 230 Cal.App.3d 30, 38.)  Courts “have repeatedly recognized that cross-complaints for comparative equitable indemnity are specifically allowed under section 428.10, subdivision (b) because of their transactional relationship to the complaint.” (Ibid.)

Pursuant to Code of Civil Procedure section 428.50, the provision which governs permissive cross-complaints, “[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.” (Code Civ. Proc., §428.50, subd. (a).)  “Any other cross-complaint may be filed at any time before the court has set a date for trial.” (Code Civ. Proc., §428.50, subd. (b).)  Thereafter, “[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 interests of justice at any time during the course of the action.” (Code Civ. Proc., §428.50, subd. (c).)

Here, the Court finds that consolidating these claims in one action will serve the purpose of judicial efficiency and promote the interests of justice.  Additionally, the motion is granted as no prejudice to any party is apparent.

Defendant shall separately file and serve the proposed cross-complaint within 10-days of this order.