Judge Deirdre Hill, Case 19TRCV00434 2022-08-25 Tentative Ruling

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On May 16, 2019, plaintiff Jeff Widmann initiated the present action by filing a Complaint against defendant Edward Leung, as an individual and as trustee for Leung Edward T. Trust, and Does 1 through 50.

On August 7, 2019, plaintiff filed a First Amended Complaint against defendant Edward Leung, as an individual and as trustee for Leung Edward T. Trust, and Does 1 through 50.

On January 13, 2020, plaintiff amended the First Amended Complaint by substituting Fit on Studios Inc., LLC, Coreology, Inc., and Coreology 2.0 LLC as Does 1, 2, and 3, respectively.

On July 10, 2020, plaintiff filed the operative Second Amended Complaint, pursuant to leave of court. Plaintiffs’ operative Second Amended Complaint alleges the following causes of action against defendants: (1) breach of contract; (2) breach of implied covenant of quiet enjoyment; (3) breach of covenant of good faith and fair dealing; (4) nuisance; (5) negligence; and (6) unfair business practices in violation of California Business and Professions Code § 17200.

On July 17, 2020, defendant Coreology, Inc. filed a Cross-Complaint against defendants Edward Leung, as an individual and as trustee for Leung Edward T. Trust, Fit on Studios, Inc., and Coreology 2.0 LLC. Defendant Coreology, Inc.’s Cross-Complaint alleges the following causes of action: (1) comparative indemnity and apportionment of fault; (2) total equitable indemnity; and (3) declaratory relief.

On October 13, 2020, plaintiff dismissed defendant Coreology, Inc. from this action.

On October 28, 2020, defendant Coreology, Inc. dismissed the Cross-Complaint filed on July 17, 2020, without prejudice.

Code of Civil Procedure section 426.10 et seq. sets forth California’s “compulsory cross-complain statute. (CCP, § 426.10 et seq. [titled “Compulsory Cross-Complaints"].) Therein, Code of Civil Procedure section 426.30 provides, “if a party against whom a complaint has been filed and served fails to allege in a cross-complaint any related cause of action which (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.” (Ibid.)

In the event a party fails to file a compulsory cross-complaint concurrently with his or her Answer, Code of Civil Procedure section 426.50 provides the following available remedies:

“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, § 426.50.)

Defendant Edward Leung, as an individual and as trustee for Leung Edward T. Trust, moves for an order granting leave to file a Cross-Complaint in this action.

Prior to engaging in a substantive analysis of defendant’s request, the court begins with a summary of the allegations included within defendant’s proposed Cross-Complaint, which has been concurrently filed with the instant Motion. Defendant’s proposed Cross-Complaint alleges a single cause of action for “Breach of Lease Agreement” against plaintiff only. Defendant, who is the owner of the commercial real property located upon 2319 through 2407 North Sepulveda Boulevard in Manhattan Beach, California (“Commercial Premises”), alleges he and plaintiff entered into a Lease Agreement (“Lease”) on or about November 27, 2017. (Cross-Compl., ¶ 16.) Defendant alleges, pursuant to the Lease Agreement, plaintiff was permitted to rent a portion of the Commercial Premises for the purposes of operating a spa in exchange for plaintiff’s payment of rent from October 1, 2017 through September 30, 2022 (Id. ¶¶ 6-7.) Defendant alleges plaintiff breached the Lease Agreement by failing to pay rent from approximately May 1, 2019 through the present. (Id. ¶18.)

The court recognizes defendant’s proposed Cross-Complaint constitutes a “compulsory” Cross-Complaint and, therefore, is governed by Code of Civil Procedure section 426.10 et seq. (CCP, §§ 426.10 et seq.) Defendant’s proposed Cross-Complaint constitutes a “compulsory” Cross-Complaint as the cause of action alleged therein are advanced “against the plaintiff” and are undoubtedly “related” to the subject of plaintiff’s operative Second Amended Complaint. Plaintiff’s Second Amended Complaint advances various causes of action against defendant, alleging defendant breached the parties’ Lease Agreement by failing to ensure plaintiff enjoyed quiet enjoyment of the Commercial Premises during the agreed-upon tenancy. (SAC, ¶¶ 37-39.) Specifically, plaintiff’s Second Amended Complaint alleges defendant breached the Lease Agreement by failing to cease or otherwise control loud noises and vibrations emanating from two adjacent tenant’s business (i.e., athletic gyms) despite the parties’ agreement that plaintiff would be provided with possession of the Commercial Premises without hinderance from other tenants. (Ibid.) Plaintiff maintains he has been unable to operate his spa facility due to defendant’s failure to cease or otherwise control the noise and vibrations emanating from neighboring lessee-businesses. (Ibid.) Presently, defendant’s proposed Cross-Complaint is clearly “related” to plaintiff’s Second Amended Complaint as the two pleadings arise from plaintiff’s lease of the Commercial Premises pursuant to the parties’ Lease Agreement. Indeed, both pleadings contend the adverse party committed a breach of the Lease Agreement during the same, relevant time-period (i.e., the period where plaintiff’s operation of the spa was disrupted by neighboring lessees).

The court further recognizes that, as defendant’s proposed Cross-Complaint is advanced against plaintiff and is “related” to the subject of plaintiff’s operative Second Amended Complaint, defendant was required to file the same at the time defendant filed his answer. (CCP, § 426.30.) As defendant has failed to do so, defendant now seeks leave from this court to file the proposed Cross-Complaint pursuant to Code of Civil Procedure section 426.50. (Code Civ. Proc., § 426.50.)

Here, following a review of the parties’ arguments, the court finds defendant is entitled to file the proposed Cross-Complaint pursuant to Code of Civil Procedure section 426.50. (Code Civ. Proc., § 426.50.) The court finds that defendant has demonstrated that his failure to file the proposed Cross-Complaint concurrently with his answer was due to an excusable cause. Namely, defendant demonstrates that, pursuant to the provisions articulated within the governing Los Angeles County COVID-19 Tenant Protections Resolution, defendant was prohibited from bringing the proposed Cross-Complaint for the non-payment of rent until only recently, on January 31, 2022. (Leung Decl., ¶ 5 [declaring, plaintiff was unable to enforce his rights under the lease to collect rent and evict defendant during the time in which defendant failed to pay rent due to the Los Angeles County COVID-19 Tenant Protections Resolution].) The governing Los Angeles County COVID-19 Tenant Protections Resolution provides, a landlord may not evict a tenant for the non-payment of rent during the “Protected Time Period”, which has been identified as beginning on March 4, 2020 and ending on January 31, 2022. (Carpinelli Decl., Ex. C at p. 5.) According to the provision cited, defendant was practically precluded from advancing the proposed Cross-Complaint against plaintiff on the date in which his answer was filed on November 16, 2020 (which was during the “Protected Time Period”). As the “Protected Time Period” has expired, defendant now moves for leave to advance his proposed Cross-Complaint.

Further, although plaintiff contends otherwise, the court finds defendant’s present attempt to obtain leave to file the proposed Cross-Complaint has been made in good faith. Defendant acted in good faith by seeking leave to file the present Motion for Leave to File the proposed Cross-Complaint upon the expiration of “Protected Time Period”. (Leung Decl., ¶ 5.) Additionally, while the trial date is approaching on October 5, 2022, plaintiff has failed to identify any concrete prejudice that may result from permitting defendant leave to file the proposed Cross-Complaint. Conversely, as defendant’s Cross-Complaint is “compulsory”, defendant will be prevented from advancing these claims at a later time, in the event leave is denied. (CCP, § CCP, § 426.50 [leave to file a cross-complaint should be liberally allowed “to avoid forfeiture of causes of action.”].) Accordingly, the court is persuaded that defendant has moved for leave to file the proposed Cross-Complaint in good faith.

Based upon the foregoing, the court finds defendant is entitled to file the proposed Cross-Complaint pursuant to Code of Civil Procedure section 426.50. (Code Civ. Proc., § 426.50.) Accordingly, defendant’s Motion To File Cross-Complaint is GRANTED.