Judge: Daniel M. Crowley, Case: 20STCV43774, Date: 2022-10-11 Tentative Ruling
Case Number: 20STCV43774 Hearing Date: October 11, 2022 Dept: 28
Defendant Liftech Elevator Services, Inc.’s Motion for Leave to File Cross-Complaint
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On November 16, 2020, Plaintiff Cecile Macabagdal (“Plaintiff”) filed this action against Defendants Hancock Plaza Homeowners Association, Inc. (“Hancock”) and Liftech Elevator Services, Inc. (“Liftech”) for general negligence and premises liability.
On January 13, 2021, Hancock filed an answer. On January 15, 2021, Hancock filed a Cross-Complaint against Cross-Defendant Liftech for indemnity and contribution. On June 18, 2021, Liftech filed an answer.
On January 15, 2021, Liftech filed an answer.
On July 8, 2022, Liftech filed a Motion for Leave to File a Cross-Complaint to be heard on October 11, 2022.
Trial is currently scheduled for January 23, 2023.
PARTY’S REQUESTS
Liftech requests leave to file a cross-complaint against Hancock for total indemnity, equitable indemnity, contribution/apportionment, express contractual indemnity and declaratory relief.
LEGAL STANDARD
California Code of Civil Procedure § 428.50 states, “(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.”
CCP § 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.”
CCP § 428.10 states “A party against whom a cause of action has been asserted in a complaint or cross-complaint may file a cross-complaint setting forth either or both of the following: (a) Any cause of action he has against any of the parties who filed the complaint or cross-complaint against him. Nothing in this subdivision authorizes the filing of a cross-complaint against the plaintiff in an action commenced under Title 7 (commencing with Section 1230.010) of Part 3. (b) Any 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.”
DISCUSSION
Plaintiff alleges that she sustained injury at Hancock’s premises after tripping over a misleveled elevator, maintained by Liftech. Liftech wishes to file a Cross-Complaint against Hancock on the basis of a maintenance contract that exist between Liftech and Hancock.
This cause of action clearly is derived from the same transaction or occurrence, as it is related to the subject elevator's maintenance. Liftech, as a party with potential contractual indemnity, has a right to assert a relevant cross-complaint. Liftech stated that the failure to file a timely cross-complaint was due to previous counsel’s oversight or mistake; upon obtaining new counsel, Liftech filed this motion. The Court finds there is good cause and grants the motion.
CONCLUSION
Defendant Liftech Elevator Services, Inc.’s Motion for Leave to File Cross-Complaint is GRANTED. Liftech is ordered to file and serve the Cross-Complaint within 30 days of the hearing on this motion.
Moving party is ordered to give notice of this ruling.
Moving Party is ordered to file the proof of service of this ruling with the Court within five days.
The parties are directed to the header of this tentative ruling for further instructions.