Judge: Gary I. Micon, Case: 23CHCV01701, Date: 2024-11-18 Tentative Ruling

Case Number: 23CHCV01701    Hearing Date: November 18, 2024    Dept: F43

Dept. F43

Date: 11-18-24

Case # 23CHCV01701, Nevieux v. Hews

Trial Date: None set.

MOTION FOR LEAVE TO FILE A CROSS-COMPLAINT

MOVING PARTIES: Cross-Complainant/Defendant Douglas Hews and Cross-Complainant Edward Arthur Hews

RESPONDING PARTY: Cross-Defendant/Plaintiff Gary Vincent Nevieux

RELIEF REQUESTED

Request leave to file a cross-complaint.

RULING: Motion is denied.

SUMMARY OF ACTION

On June 12, 2023, Plaintiff and Cross-Defendant Gary Vincent Nevieux (Nevieux) filed a complaint against Defendant and Cross-Complainant Douglas Hews to return the property of Nevieux stored on home property owned by Douglas Hews and proposed Cross-Complainant Edward Arthur Hews (collectively the Hews) by a tenant, Arren Kroul, of the previous property owners. Kroul was also a tenant of the Hews. The Hews denied Nevieux access to the home property to retrieve his personal property.

On September 25, 2023, the Hews filed an answer and a cross-complaint alleging that the personal property, consisting of vehicles, a trailer, and some tools and other miscellaneous items, were stored at the subject property without their permission. The Hews allege that they contacted Nevieux to get him to remove the items, but he refused to do so. The Hews claim that they placed a lien on the items stored at the property. The cross-complaint alleged three causes of action for trespass, private nuisance, and declaratory relief. However, the cross-complaint was rejected due to naming errors. (Reply, Exh. 1.)

Nevieux filed a demurrer to the original cross-complaint on November 21, 2023. On April 11, 2024, the Court sustained the demurrer on the grounds that the original cross-complaint was untimely filed and denied leave to amend. The Court’s order also addressed the cross-complaint’s substantive deficiencies stating the Court would have granted leave to amend if the Cross-Complaint was not untimely.

On October 14, 2024, the Hews filed a motion for leave to file another cross-complaint—an amended version of the original cross-complaint. On November 7, 2024, Nevieux filed an opposition. On November 8, 2024, the Hews filed a reply.

ANALYSIS

Summary of Arguments

Cross-Complainants ask the Court to grant leave to file a cross-complaint on the grounds that the proposed cross-complaint (1) arises from the same transaction or occurrence from which Plaintiff’s complaint arises, (2) there is no risk of prejudice to plaintiff, and (3) it is in the interest of justice to allow the Hews to litigate their issues regarding the property at issue. The Hews claim the original cross-complaint was untimely filed due to an inadvertent error and mistake by their counsel. Upon learning the original cross-complaint, which was filed on September 22, 2023, had been rejected, the Hews’s counsel re-filed the cross-complaint on October 4, 2023. The Hews also contend that granting this motion will not prejudice Plaintiff because the proposed cross-complaint (1) was filed before trial or discovery have commenced, and (2) the parties involved are the same with the addition of proposed Cross-Complainant Edward Arthur Hews.

In opposition, Plaintiff argues that this motion directly contravenes the Court’s April 11, 2024 Minute Order, which sustained the Hews’s demurrer to the original cross-complaint on the grounds that (1) the cross-complaint was untimely and (2) the cross-complaint failed to state facts sufficient to support its claims, without leave to amend.

In reply, the Hews argue the Minute Order did not bar them from filing notice for leave to file a cross-complaint, but that the original cross-complaint could not be amended. The Hews state the demurrer to the original cross-complaint was sustained entirely on untimeliness grounds. The Hews also present evidence that they filed both their answer and original cross-complaint on September 22, 2023, but that the filed documents were stamped with a date of September 25, 2023 and October 4, 2023, respectively. (Reply, Exh. 1, at p. 2.) Finally, the Hews contend the Court should not award sanctions because this motion was brought in good faith.

Timeliness

If parties are unable to meet and confer at least five (5) days before the responsive pleading is due, section 430.41 grants the demurring party an automatic 30-day extension within which to file a responsive pleading. (Code Civ. Proc., § 430.41, subd. (a)(2).) The demurring party must file and serve on or before the date on which a demurrer would be due, a declaration stating reasons for failing to meet and confer. (Ibid.) The 30-day extension commences on the date the responsive pleading was originally due. (Ibid.) The court may grant further extensions upon a showing of good cause. (Ibid.)

On July 20, 2023, Plaintiff personally served the summons and complaint upon Defendant Hews. The original deadline for Defendant Hews to file a responsive pleading was Saturday, August 19, 2023, 30 days after Defendant Hews was personally served. Because this date fell on a weekend, Defendant Hews needed to file his responsive pleading by the next court day on Monday, August 21, 2023.

On August 22, 2023, Defendant Hews, who was pro per at the time, filed a declaration to automatically extend the time to file a responsive pleading by 30 days pursuant to Civil Procedure section 430.41. The declaration was dated August 21, 2023, but the document is date stamped for August 22, 2023. Even though Defendant Hews filed the declaration after the responsive pleading deadline, Plaintiff did not raise the issue.

This extended the responsive pleading deadline to September 20, 2023.

The Hews filed their original cross-complaint on September 22, 2023, after the extended deadline.

Accordingly, the original cross-complaint was untimely because it was filed late not because of a technological mistake.

Good Cause

The Hews move under section 428.50, subdivision (c). However, the Hews frame their arguments as if they are filing a new cross-complaint separate from the original cross-complaint, when in fact they are seeking to file an amended version of the original cross-complaint. Thus, the Court finds that the proper section for this analysis is section 473.

“Section 473(b) authorizes the trial court to vacate a dismissal, order, or judgment if it occurred because of the excusable mistake, inadvertence, surprise, or neglect of a party or its attorney.” (County of San Bernardino v. Mancini (2022) 83 Cal.App.5th 1095, 1102.) “Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b).)

Excusable neglect or mistake “exists when ‘a reasonably prudent person in similar circumstances might have made the same error.’” (Mancini, supra, 83 Cal.App.5th at p. 1103 [quoting Huh v. Wang (2007) 158 Cal.App.4th 1406, 1423].) “Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable.” (Huh v. Wang, supra, 158 Cal.App.4th at p. 1423 [internal quotation omitted].) “Relevant factors in assessing counsel error include: ‘(1) the nature of the mistake or neglect; and (2) whether counsel was otherwise diligent in investigating and pursuing the claim.’” (Ibid. [quoting Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276].)

Here, the Hews present the declaration of their counsel of record, Jacob H. Zadeh, and a record of filings in their counsel’s Journal Technologies Court Portal. (Declaration of Jacob H. Zadeh [Zadeh Decl.]; Reply Declaration of Jacob H. Zadeh [Reply Decl.], Exh. 1.)

Zadeh electronically and simultaneously filed the answer and the original cross-complaint in the Court’s Journal Technologies Portal on September 22, 2023. (Zadeh Decl., ¶¶ 3-4; Reply Decl., ¶ 3, Exh. 1, at p. 1.) The Portal lists a filing date of September 22, 2023. However, the date stamp on the documents in the Court’s file show the answer was electronically filed on September 25, 2023. (Reply Decl., ¶ 3, Exh. 2, at p. 2.) Because September 22, 2023 was a court holiday, Native American Day, all papers filed that day were date-stamped for the following court day: September 25, 2023.

Unbeknownst to Zadeh, the cross-complaint was rejected with a status of “Rejected

Please verify/correct: In eFile – Filed By (Defendant) name selected does not correspond verbatim to Cross-Complaint name . . . state ‘Erroneously Sued’ and enter Filed By name in the field ‘Erroneously Sued.’” (Zadeh Decl., ¶ 4; Reply Decl., ¶ 5, Exh. 1, at p. 2.) Once Zadeh learned of the errors, Zadeh filed the cross-complaint on October 4, 2023. (Reply Decl., ¶ 6.)

The Hews’s motion rests upon the argument that their original cross-complaint was not untimely because Zadeh was unaware of the errors which caused the original cross-complaint to be rejected from the Court’s efiling system. As stated above, the Court finds that the original cross-complaint would have been untimely regardless of the rejection or counsel’s mistake. The Hews waited over six months to file this motion and fail to provide a “new” excusable mistake which would cause a reasonably prudent lawyer to now file an amended version of the same cross-complaint.

Thus, the Court again holds that the time for the Hews to file a cross-complaint has expired.

Accordingly, the Court denies the Hews’s motion for leave to file a cross-complaint.

Conclusion

The motion is denied.

Moving parties to give notice.