Judge: Daniel M. Crowley, Case: 21STCV38725, Date: 2022-08-17 Tentative Ruling
Case Number: 21STCV38725 Hearing Date: August 17, 2022 Dept: 28
Defendant Michel Levy’s Motion for Leave to File Cross-Complaint
Having considered the moving, opposing and reply papers, the Court rules as follows.
BACKGROUND
On October 20, 2021, Plaintiffs Sigalit Benabou (“Sigalit”) and Aharon Benabou (“Aharon”) filed this action against Defendant Michel Levy (“Defendant”) for general negligence and premises liability.
On December 28, 2021, Defendant filed an answer.
On July 15, 2022, Defendant field a Motion for Leave to File a Cross-Complaint to be heard on August 17, 2022. On August 4, 2022, Plaintiffs filed an opposition. On August 5, 2022, Defendant filed a reply.
Trial is currently scheduled for April 19, 2023.
PARTY’S REQUESTS
Defendant requests leave to file a cross-complaint against Sigalit and third-party Arik Erets (“Erets”) for negligence and comparative equitable indemnity.
Plaintiffs request the Court deny the motion, or, in the alternative, impose $2,500.00 in sanctions on Defendant.
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
Plaintiffs’ complaint alleges that Plaintiffs were damaged as a result of a fire that occurred in their rental home, which was owned by Defendant. Plaintiff alleges that Defendant, as an owner and landlord, failed to maintain the residence and electrical outlets and to provide adequate safety feature. Defendant argues that through discovery, Defendant has learned that the fire was likely caused by Sigalit and Erets’s negligence. This fire resulted in approximately $500,000.00 in damages to Defendant.
This cause of action clearly is derived from the same transaction or occurrence, as it is related to the subject fire. Defendant, as owner of the property, has a right in the subject of the cause. The Court finds that Defendant acted in good faith, as Defendant first investigated whether there was a basis to allege Sigalit and Erets were the cause of the negligence. Trial is still more than six months away and the source of the fire is already a subject in dispute.
Plaintiff argues that Defendant’s cross-complaint is tardy and is without good reason to explain said tardiness. Defendant asserts that he did not retain experts to ascertain the cause of the fire until 3 months prior to the filing of this motion, thus the delay. Finally, Plaintiff both argues that they would be prejudiced by this, but also notes that the proposed cross-complaint raises issues “entirely duplicative” of the issues presented by the complaint. (Opposition, 4:12-13.) Given that that the issues are duplicative, there should be minimal prejudice.
CONCLUSION
Defendant Michel Levy’s Motion for Leave to File Cross-Complaint is GRANTED. Defendant 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.