Judge: Elaine Lu, Case: 20STCV30175, Date: 2023-03-06 Tentative Ruling





1. If you wish to submit on the tentative ruling,
please email the clerk at SMCdept26@lacourt.org (and “cc” all
other parties in the same email) no later than 7:30 am on
the day of the hearing, and please notify all other parties in advance that you
will not be appearing at the hearing.  Include the word "SUBMISSION" in all caps in the
subject line and include your name, contact information, the case number, and
the party you represent in the body of the email. If you submit on the
tentative and elect not to appear at the hearing, the opposing party may
nevertheless appear at the hearing and argue the motion, and the Court may
decide not to adopt the tentative ruling.




2. 
For any motion where no parties submit to the tentative ruling in
advance, and no parties appear at the motion hearing, the Court may elect to
either adopt the tentative ruling or take the motion off calendar, in its
discretion.




3. PLEASE DO NOT USE THIS
EMAIL (SMCdept26@lacourt.org) FOR ANY PURPOSE OTHER THAN TO SUBMIT TO A TENTATIVE
RULING.  The Court will not read or
respond to emails sent to this address for any other purpose.




4. IN ORDER TO IMPLEMENT
PHYSICAL DISTANCING GOING FORWARD AND UNTIL FURTHER NOTICE, THE COURT STRONGLY
ENCOURAGES ALL COUNSEL AND ALL PARTIES TO APPEAR TELEPHONICALLY FOR NON-TRIAL
AND NON-EVIDENTIARY MATTERS.  Thus, until further
notice, Department 26 strongly encourages telephonic appearances for motion
hearings that do not require the presentation of live testimony.




 






Case Number: 20STCV30175    Hearing Date: March 6, 2023    Dept: 26

On August 10, 2020, Plaintiff Pavoreal, LLC (“Plaintiff”) filed the instant breach of contract action against Defendant ADT, LLC (“Defendant”).  On October 21, 2021, Plaintiff filed the operative First Amended Complaint (“FAC”) against Defendant.  The FAC asserts two causes of action for (1) Negligence and (2) Breach of Contract.

 

On January 18, 2023, Defendant filed the instant motion for leave to file a cross-complaint against Allen Kirkland for equitable indemnity and contribution.  Defendant asserts that this cross-complaint is necessary because Plaintiff had previously judicially admitted that Allen Kirkland was its employee.  However, Plaintiff sought and was granted leave to amend that admission.  Defendant asserts that Allen Kirkland was involved with the alleged harm in the case, and thus, failure to add Allen Kirkland to the instant action would needlessly require a separate action against Allen Kirkland involving the same facts and issues as the instant action. 

 

On February 17, 2023, the Court granted Defendant’s ex parte application and advanced the instant motion to March 6, 2023. 

 

On February 23, 2023, Plaintiff filed an opposition.  On February 27, 2023, Defendant filed a reply.

 

Code of Civil Procedure section 428.10 provides that a party against whom a cause of action has been asserted may file a permissive cross-complaint setting forth: “(a) [a]ny 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…”  (CCP § 428.10(a).)  A party shall obtain leave of court to file a cross-complaint if it is not concurrently filed with the answer or at any time before the court sets a trial date.  Leave may be granted in the interest of justice at any time during the course of the action.  (CCP § 428.50(c).)

 

Similarly, Code of Civil Procedure § 426.50, states: “[a] party who fails to plead a cause of action subject to the requirements of this article [for compulsory cross-complaints], 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.)

 

The standard for a permissive cross-complaint is whether the proposed amended complaint is within the interest of justice.  (CCP § 428.50(c).)  Thus, “[p]ermission to file a permissive cross-complaint is solely within the trial court's discretion.”  (Crocker Nat. Bank v. Emerald (1990) 221 Cal.App.3d 852, 864.)

 

For the reasons stated in the moving and reply papers, Defendant's motion for leave to file a cross-complaint is GRANTED.  Defendant is to file the cross-complaint within 3 court days.  Defendant Cross-Complainant is ordered to appear on March 13, 2023 for an OSC re proof of service of the cross-complaint. 

 

Defendant is to give notice and file proof of service of such.