Judge: Douglas W. Stern, Case: 22STCV23696, Date: 2022-12-15 Tentative Ruling

Case Number: 22STCV23696    Hearing Date: December 15, 2022    Dept: 68

Motion to Strike
Cross-Complaint

Plaintiff/Cross-Defendant
L.A. Law has filed this Motion to Strike asking that the Court strike the Defendant’s
Cross-Complaint filed October 18, 2022, as it was untimely (having not been
filed with the October 17, 2022, Answer) and on the basis that it was mailed to
Plaintiff’s counsel at an incorrect address.

C.C.P. § 428.50(a)
directs that the Cross-Complaint may be filed at or before the filing of the party’s
Answer.  This Cross-Complaint was filed
one day after the filing of the Answer. 
It also was misaddressed.

Background

The claims in this
case all arise from an attorney-client relationship.  Plaintiff/Cross-Defendant L.A. Law filed its
complaint on July 21, 2022, alleging five causes of action against
Cross-Complainant for (1) breach of contract, (2) quantum meruit for services
rendered, (3) account stated, (4) book account, and (5) fraud. These causes of
action arise out of Defendant/Cross-Complainant’s alleged breach of a retainer
agreement with Plaintiff/Cross-Defendant’s law offices.  The Defendant/Cross-Complainant is alleged to
have failed and refusal to pay outstanding legal services fees and costs. (Comp.,
at p. 2.)

Defendant/Cross-Complainant
was served with the Complaint on September 12, 2022. Thirty-five days later, on
October 17, 2022, Cross-Complainant filed an Answer.  (That same day, L.A. Law filed a Request for
Entry of Default, but it was rejected by the clerk.)  The following day, October 18, 2022,
Cross-Complainant filed the Cross-Complaint at issue in this Motion. The
Cross-Complaint alleged six causes of action against Cross-Defendants L.A. Law
and F. Bari Nejadpour for (1) professional negligence legal malpractice; (2)
breach of fiduciary duty; (3) fraud and deceit; (4) breach of contract; (5)
intentional infliction of emotional distress; and (6) negligent infliction of
emotional distress. These causes of action all arise out of the attorney-client
relationship that Defendant/Cross-Complainant had with Plaintiff/Cross-Defendants.
(Cross-Comp., at p. 2.)

The Tardy
Cross-Complaint

This case was filed
in late July 2022 and is in its infancy. 
Plaintiff/Cross-Defendant is correct that under C.C.P § 428.50(a) the
Cross-Complaint should have been filed on or before October 17, 2022, with the
Answer and that it was one day late.  (It
appears that it would be a compulsory Cross-Complaint (See C.C.P. § 426.10.))

Given the law
relating to the assertion of crossclaims, the Court should allow a cross-complaint
to be filed so that the entire dispute may be resolved in this one case, so
long as there has not been any undue delay or other basis for claiming
prejudice.  This rule is particularly
appropriate when the failure to allow the filing may result in the claims being
precluded for all times.  And in a situation,
such as this where no meaningful time has passed, it is appropriate to allow a “late
filed” claim.

Were this Court to
grant the Motion to Strike, it would likely lead to a motion for leave to file
the cross-complaint in this very young case. 
That would merely take more judicial time and delay this case, to the
disadvantage of all.  It would be inefficient
and a waste of judicial resources to require that act given the mere one day
late filing.

Misaddressed Service

Plaintiff is also
correct that it is important for all parties to carefully make certain that
they are properly serving all papers on the other parties.  But the failing in this case, while most regrettable,
simply does not mandate that the Court strike the Cross-Complaint.

All parties are
reminded of the need to faithfully adhere to the statutory requirements and the
professional standard that control our civil process.  Carelessness is not acceptable.  But unfortunately, it happens.

The Motion to Strike
is DENIED.  A responsive pleading shall
be filed within 20 days.