Judge: Daniel M. Crowley, Case: 21STCV11927, Date: 2022-12-06 Tentative Ruling

Case Number: 21STCV11927    Hearing Date: December 6, 2022    Dept: 28

Motion for Leave to File Cross-Complaint

            Having considered the moving, opposing, and reply papers, as well as the argument of counsel, the Court rules as follows.

BACKGROUND

This is an action that arises out of an alleged slip-and-fall incident in 2020.  Zenata Danova (Plaintiff) filed this action against Restaurant Depot, LLC (Defendant), Jose Moreno, and Juan Garcia on March 29, 2021, alleging causes of action for (1) negligence and (2) premises liability.

PARTIES’ REQUESTS

Motion

Defendant filed this motion for leave to file a cross-complaint against nonparty Greenhouse Brands, Inc. dba Bel Air Foods (Bel Air Foods) and potential Roe cross-defendants on November 7, 2022.  Through its proposed cross-complaint, Defendant alleges Bel Air Foods has a membership with Defendant and that Plaintiff was injured on Defendant’s premises while shopping with authorization from Bel Air Foods.  (Motion p. 3.)  Defendant’s proposed cross-complaint alleges Plaintiff caused and/or contributed to her injury, seeks indemnity and contribution from Bel Air Foods, and further states Bel Air Foods has a duty to defend Defendant in this litigation.  (Motion p. 3; Reply p. 3-4.)

Defendant argues the complaint and proposed cross-complaint arise out of the same transactions and occurrences, the interests of justice mandate the motion be granted, there is no evidence of bad faith, and Plaintiff would not be prejudiced.

Opposition

In her opposition filed November 22, 2022, Plaintiff contends Defendant cannot demonstrate good cause for filing an untimely motion, has not acted in good faith, offered no evidence to support the proposed cross-complaint or demonstrate good cause, and is not prejudiced by denial of the motion.  (Opposition p. 3, 5.)

Reply

In its reply filed November 29, 2022, Defendant argues Plaintiff’s opposition is not timely, Bel Air Foods has a duty to defend Defendant, the interest of justice favors granting leave, Plaintiff produced no evidence of Defendant’s bad faith, and Plaintiff already agreed to a trial continuance.  (Reply p. 2-6.)

LEGAL STANDARD

Under Code of Civil Procedure section 428.10(b)(1), “[a] party against whom a cause of action has been asserted in a complaint or cross-complaint 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 . . . arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him. . . .”

A cross-complaint filed against a nonparty “may be filed at any time before the court has set a date for trial.”  (Code Civ. Proc. § 428.50(b).)  If the court has set a date for trial, “[a] party shall obtain leave of court to file” the cross-complaint, and “[l]eave may be granted in the interest of justice at any time during the course of the action.”  (Code Civ. Proc. § 428.50(c).)

DISCUSSION

Defendant notes for the Court that Plaintiff’s opposition was not timely under Code of Civil Procedure section 1005(b), as Plaintiff served Defendant with the opposition eight court days before the hearing instead of the requisite nine court days.  Nevertheless, in the interest of justice, the Court considers the opposition and reminds the parties to note the judicial holidays recognized by the Superior Court of California, County of Los Angeles.

The parties agree the complaint and cross-complaint arise out of the same transaction and occurrence.  However, this is not a compulsory cross-complaint under section 426.10 et seq. because the proposed cross-complaint is not levied against Plaintiff.  Additionally, the Court has set a date for trial, so the proposed cross-complaint here does not meet the requirements of section 428.50(b).  Thus, the Court has discretion whether to grant leave to file the proposed cross-complaint pursuant to section 428.50(c).

Defendant argues there is no evidence it acted in bad faith and relies on section 426.50 for the proposition that “courts have discretion to allow a defendant to file a cross-complaint at any time as long as the defendant is not acting in bad faith.”  (Motion p. 7; Reply p. 5.)  Plaintiff, on the other hand, contends Defendant is acting in bad faith.  (Opposition p. 3.)  But section 426.50 and analysis concerning the moving party’s bad faith are reserved for compulsory cross-complaints, and as explained above, this is not a compulsory cross-complaint.

Defendant also argues the interest of justice favors grant.  (Motion p. 6.)  According to Defendant, if the motion is not granted, then Defendant will have to file a separate complaint against Bel Air Foods, to the detriment of judicial economy.  (Motion p. 6-7.)  Defendant explains, “[Defendant] must be allowed to enforce its contractual rights and obtain an order requiring Bel Air Foods to immediately defend it from Plaintiff’s claims, in this litigation.  If Defendant is not permitted to do so, its claim for an immediate duty defend could be effectively relegated to a recovery action for its incurred defense fees in a separate lawsuit.”  (Reply p. 4-5.)  Moreover, Defendant states Plaintiff will not be prejudiced, stating that there is sufficient time for parties to conduct additional discovery regarding claims against Bel Air Foods before trial in June 2023.  (Motion p. 7.)  The Court agrees.

Plaintiff counters that Defendant will not be prejudiced if leave to file the proposed cross-complaint is denied.  (Opposition p. 5.)  Plaintiff first argues that denial of leave to file Defendant’s proposed cross-complaint would not preclude Defendant’s claims against Bel Air Foods for equitable indemnity in the future.  (Opposition p. 5.)  Plaintiff then suggests that granting leave to file the proposed cross-complaint would interfere with Plaintiff’s right to an expeditious and economical trial.  (Opposition p. 6.)  But Plaintiff does not explain why the cross-complaint would prolong trial.  Additionally, Defendant’s proposed claims against Bel Air Foods do not merely concern the accrual of equitably indemnity, but also include a claim that Bel Air Foods has a duty to defend Defendant in this litigation.  (Reply p. 4-5.)  Therefore, the interest of justice favors granting Defendant’s motion for leave to file a cross-complaint.

CONCLUSION        

Accordingly, Defendant’s motion for leave to file a cross-complaint is GRANTED.

Moving party to give notice.