Judge Elaine W. Mandel, Case 21STCV11212 2022-10-06 Tentative Ruling

Judge: Elaine W. Mandel, Case: 21STCV11212, Date: 2022-10-06 Tentative Ruling

Case Number: 21STCV11212 Hearing Date: October 6, 2022 Dept: P

Tentative Ruling
Hall, et al. v. Vandenberg, et al. Case No. 21STCV11212
Hearing date October 6, 2022
Defendant Vandenberg’s Motion for Leave to File Cross-Complaint

Plaintiffs Hall and Sea Monkeys sued defendant, Hall’s former spouse and business partner, for Infliction of Emotional Distress, Intrusion into Private Matters, Defamation, Conversion, Intentional Interference with Contractual Relations, Intentional Interference with Prospective Economic Relations and Civil Battery. Defendant seeks leave to file a cross-complaint arising out of the same set of facts.

Where a defendant wishes to assert a “related cause of action” against plaintiff, it must do so in a cross-complaint. Failure to plead it will bar defendant from asserting it in a later lawsuit. Code Civ. Proc., § 426.10, § 426.30. A cross-complaint may be filed as a matter of right if filed before or at the same time as the answer; otherwise, leave of court must be obtained. Code Civ. Proc., § 428.50, subd. (a), (c). Leave may be granted at any time. § 428.50(c). Where a cause of action would otherwise be lost, leave to amend is appropriate even if the party was negligent in not moving for leave to amend earlier. “The legislative mandate is clear. A policy of liberal construction of section 426.50 to avoid forfeiture of causes of action is imposed on the trial court.” Silver Org., Ltd. v. Frank (1990) 217 Cal.App.3d 94, 98-99.

Defendant seeks to file a cross-complaint alleging seven causes of action arising out the same transactions and occurrences giving rise to this action. The crossclaim is a “related cause of action,” and defendant must plead it so as not to forfeit her right to bring the action.

The legislative intent regarding motions for leave to file a cross-complaint reflects a preference that these motions be granted absent a strong showing of bad faith. Silver Orgs, supra 217 Cal.App.3d at 100.

Defendant’s new counsel states the delay in seeking leave was primarily due to a change of counsel. Counsel Jun states the “transfer of information from the family court took several months.” 08-11-22, Jun Decl. Jun sought a stipulation from plaintiffs’ counsel for leave to file the cross-complaint, but counsel declined. 08-11-22, Jun Decl.

Plaintiffs allege defendant files this motion in bad faith, as defendant was on notice of facts that would have enabled the crossclaims to be filed earlier. Plaintiffs allege defense counsel delayed for three months to request documents from the family court action.

In Silver Orgs. request for leave to file a cross-complaint made a week before trial was not found to be in bad faith. Id. Plaintiffs rely on Gherman v. Colburn (1977) 72 Cal.App.3d 544, in which the court held there was bad faith where defendant knew grounds for the crossclaims for 30 days before trial but waited until the first day of trial to file the crossclaims. The Gherman court held such conduct “may be interpreted as a lack of good faith especially when coupled with the long history of litigation between the parties, which demonstrates that both sides were jockeying for position over the right to a jury trial.” Gherman, at 560.

This case is not like Gherman. Defendant requested plaintiffs’ counsel’s agreement to file the cross-complaint. Plaintiffs’ counsel refused. There is no trial date, and discovery has just begun, so plaintiffs make no showing of prejudice. Allowing defendants to bring crossclaims is to be liberally allowed. It is unfortunate this motion was necessary. GRANTED.