Judge: Cynthia A Freeland, Case: 37-2022-00029515-CU-PO-NC, Date: 2024-01-05 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - January 04, 2024

01/05/2024  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  PI/PD/WD - Other Motion Hearing (Civil) 37-2022-00029515-CU-PO-NC WOJAK VS. DOE 1 CAUSAL DOCUMENT/DATE FILED: Motion for Leave to File Cross Complaint, 11/28/2023

Defendants Michele Mahoney and Paul Mahoney (collectively, 'Defendants')'s motion for leave to file a Cross-Complaint is granted.

Plaintiff Dean Wojak ('Plaintiff')'s January 2, 2024 objection to the 'new evidence' submitted in support of Defendants' reply brief is sustained. See, e.g., People v. Silveria (2020) 10 Cal. 5th 195, 255 ('It is axiomatic that arguments made for the first time in a reply brief will not be entertained because of the unfairness to the other party.'). Consequently, for purposes of ruling on the present motion, the court has not considered Ms. Mahoney's December 27, 2023 declaration in support of Defendants' reply. See ROA No. 76.

California Code of Civil Procedure ('CCP') § 426.30(a) provides that '[i]f a party against whom a complaint has been filed and served fails to allege in a cross-complaint any related cause of action (at the time of serving his answer to the complaint) he has against the plaintiff, such party may not thereafter in any other action assert against the plaintiff the related cause of action not pleaded.' Cal. Code Civ. P. § 426.30(a). A related cause of action is one '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.' Cal. Code Civ. P. § 426.10(c). CCP § 426.10(c) does not require that the causes of action in the proposed cross-complaint and previous complaint be identical; rather, they must share a logical relationship. See ZF Micro Devices, Inc. v. TAT Capital Partners, Ltd. (2016) 5 Cal. App. 5th 69, 82. Put differently, the causes of action must involve common issues of fact and law, an overlap of issues, and a common transaction. Ibid.

If a party fails to plead a cause of action as required by CCP § 426.30(a), he or she may seek leave of court to amend his or her pleading, or to file a cross-complaint, to assert the cause of action at any time during the proceeding. See Cal. Code Civ. P. § 426.50. A motion for leave to file a cross-complaint must be granted unless the circumstances surrounding the motion demonstrate substantial evidence of bad faith on the movant's part. Ibid.; Silver Organizations Ltd. v. Frank (1990) 217 Cal. App. 3d. 94, 98-99.

Substantial evidence of bad faith means evidence 'of ponderable legal significance, . . . reasonable in nature, credible, and of solid value.' Silver Organizations Ltd., 217 Cal. App. 3d at 99 (quoting Bowers v. Bernards (1984) 150 Cal. App. 3d 870, 873). Bad faith generally implies or involves: (1) actual or constructive fraud; (2) a design to mislead or deceive another; (3) a neglect or refusal to fulfill a duty or contractual obligation; (4) a conscious wrongdoing with a dishonest or sinister motive; and/or (5) a state of mind affirmatively operating with furtive design or ill will. See Silver Organizations Ltd., 217 Cal. App. 3d at 100. The court must construe CCP § 426.50 liberally given the statute's policy of avoiding forfeiture of causes of action, and a strong showing of bad faith is required to deny leave to file a compulsory Calendar No.: Event ID:  TENTATIVE RULINGS

3064793 CASE NUMBER: CASE TITLE:  WOJAK VS. DOE 1  37-2022-00029515-CU-PO-NC cross-complaint. Cal. Code Civ. P. § 426.50; Silver Organizations Ltd., 217 Cal. App. 3d at 100; Sidney v. Sup. Ct. (1988) 198 Cal. App. 3d. 710, 718; Foot's Transfer & Storage Co. v. Sup. Ct. (1980) 114 Cal. App. 3d 897, 902-903. In juxtaposition, courts have discretion to deny leave to file a cross-complaint, including based upon a finding of unexplained delay, depending on the interests of justice. See Crocker Nat. Bank v. Emerald (1990) 221 Cal. App. 3d 852, 864; Cal. Code Civ. P. § 428.50(c).

The claims that Defendants seek to assert against Plaintiff arise out of the same event/occurrence as that which forms the basis of Plaintiff's claims against Defendants, namely a bicycle collision that occurred on April 30, 2022. As a result, the proposed cross-complaint is compulsory, which means that the court can only deny the pending motion if the requisite showing of bad faith has been made. In this case, while the court agrees with Plaintiff that: (1) Defendants have not explained why the proposed claims could not have been asserted earlier, and (2) it is perplexing, if not frustrating, that Defendants did not raise the potential claims in discussion with Plaintiff's counsel or the court at the various proceedings and/or conferences that have been conducted in this matter, said explanation is neither required for, nor determinative of, the pending motion. Indeed, Defendants' failure to raise potential crossclaims earlier than what is basically the eve of trial, in and of itself, is not sufficient evidence of Defendants' bad faith. Moreover, Plaintiff's speculation that Defendants are seeking 'to take away Plaintiff's right to trial by asserting this cross-complaint and having the court move the trial date' (see Winet Decl., ¶ 8), without more, is insufficient to demonstrate the requisite bad faith to warrant denial of the motion.

In light of the foregoing, the court grants Defendants' motion for leave to file a Cross-Complaint.

Defendants shall file and serve the Cross-Complaint within five (5) days of this hearing. Counsel shall attend the hearing prepared to discuss, inter alia, the pending trial and trial-related dates.

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