Judge: Elaine W. Mandel, Case: 22STCV03442, Date: 2023-05-23 Tentative Ruling

Case Number: 22STCV03442    Hearing Date: May 23, 2023    Dept: P

Tentative Ruling

Bru, et al. v. Universal Protection Service, LP, Case No. 22STCV03442

Hearing Date May 23, 2023

Defendant Universal Protection Service’s Motion for Leave to File Cross-Complaint

This case arises out of a 2020 fire at Barrington Plaza apartment complex. Defendant Universal Protection Service managed security at the complex and was responsible for emergency preparedness. In September 2022 Universal filed UPS v. Malochka et al., case no. 22SMCV01732, alleging Malochka, Dean, Karimov and Kromendopulo caused the fire, and seeking indemnity. In that action, the court sustained a demurrer, finding the claim should have been filed as a compulsory cross-complaint in this action. Universal filed a first amended complaint in Malochka, which it will dismiss if this court grants leave to bring the indemnity claims alleged in Malochka as a cross-complaint in this action.

A cross-complaint alleging a cause of action related to the initial complaint is waived unless brought when the answer is served. Cal. Code of Civ. Proc. §426.30. A party who fails to bring a compulsory cross-complaint at that time can move for leave to file the cross-complaint later on the grounds of oversight, inadvertence, mistake, neglect or other cause if it acted in good faith. Cal. Code of Civ. Proc. §426.50. Leave to file a cross-complaint must be liberally granted, so cases can be decided on their merits. Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596.

In April 2022 Universal alleges it became aware of a Fire Investigation Report indicating Malochka, Dean, Karimov and Kromendopulo were responsible for starting the fire and was previously unaware of these facts. Universal’s prior counsel did not notify current counsel about the report, and Universal did not obtain the report until August 2022 during discovery. Universal argues it was not on notice of the facts underlying proposed cross-defendants’ potential liability until April 2022 at the earliest or August 2022 at the latest.

In September 2022 Universal filed Malochka based on facts discovered in the report. Universal argues the failure to file the proposed cross-complaint at the time it answered in this case occurred in good faith, and leave should be granted on the grounds of delayed discovery. Cal. Code of Civ. Proc. §426.50.

Plaintiffs argue Universal failed to act diligently, as it knew litigation regarding the fire was pending since February 2020, and it has been in touch with the LAFD constantly. Plaintiffs argue Universal had time to investigate the fire’s cause in the two years before they allegedly obtained the report. Additionally, plaintiffs argue the report does not actually blame Malochka, Dean, Karimov and Kromendopulo for the fire, so Universal’s claim that the report revealed those parties’ liability is without merit.

Universal argues the report contained information not previously available, including that proposed cross-defendants stored combustible materials on a balcony. This is sufficient to support Universal’s argument that the report provided notice of cross-complainants’ potential liability.

Universal acted diligently by filing Malochka one month after counsel obtained the report. Leave to file a compulsory cross-complaint must be liberally granted. There is no prejudice if the motion is granted. In the interests of justice and allowing all matters to be litigated on the merits in this case, the motion is GRANTED.