Judge: H. Jay Ford, III, Case: 21SMCV02025, Date: 2023-04-27 Tentative Ruling

Case Number: 21SMCV02025    Hearing Date: April 27, 2023    Dept: O

Case Name:  Maliview Estates, LLC, et al. v. Darrell Roy Enterprises, Inc., et al.

SUBJECT:                MOTION FOR LEAVE TO FILE Cross-COMPLAINT

MOVING PARTY:   Cross-Defendants Coldwell Banker Residential Brokerage Company and William Moss

RESP. PARTY:         None as of 4-20-23

TENTATIVE RULING

            Cross-Defendants Coldwell Banker Residential Brokerage Company and William Moss’s Motion for Leave to File Cross-Complaint is GRANTED.  Cross-Defendants seek leave to file a x-complaint against non-parties Amerikana Business Capital, Inc. and Nagy Y. Henein for equitable indemnity, contribution and declaratory relief.  No opposition was filed to the motion. 

APPLICABLE LAW

After having previously filed an answer, a defendant seeking to file a cross-complaint against the plaintiff must obtain leave of court.  See CCP §428.50(a) and (c).  If the proposed cross-complaint is permissive, leave of court may be granted “in the interests of justice” at any time during the course of the action.  See CCP §428.50(c).  On the other hand, if the proposed cross-complaint is compulsory, leave must be granted so long as defendant is acting in good faith.  See CCP §426.50 (court “shall” grant leave to file a compulsory x-complaint brought in good-faith); see also Weil & Brown, Civil Procedure Before Trial, ¶6:563.  

“Courts must apply a policy of¿liberality¿in permitting amendments at any stage of the proceeding, including during trial, when no prejudice to the opposing party is shown.”¿P&D Consultants, Inc. v. City of Carlsbad¿(2010) 190 Cal.App.4th 1332, 1345. Prejudice exists, for example, where the plaintiff unduly delayed in seeking leave to amend, and the amendment will require a trial continuance and a reopening of discovery on the eve of trial.¿¿Id.¿(leave to amend properly denied where plaintiff offered no explanation for one-year delay in seeking leave to amend, amendment was requested after trial readiness conference, amendment would require additional discovery and amendment would likely trigger a demurrer or other pretrial motions);¿Magpali v. Farmers Group, Inc.¿(1996) 48 Cal.App.4th 471, 488 (“Where the trial date is set, the jury is about to be impaneled, counsel, the parties, the trial court, and the witnesses have blocked the time, and the only way to avoid prejudice to the opposing party is to continue the trial date to allow further discovery, refusal of leave to amend cannot be an abuse of discretion”). 

“Section 473 permits the trial court in its discretion to allow amendments to pleadings in the furtherance of justice. Ordinarily, courts should exercise¿liberality¿in permitting amendments at any stage of the proceeding.¿¿In particular,¿liberality¿should be displayed in allowing amendments to answers, for a defendant denied leave to amend is permanently deprived of a defense.”¿¿Hulsey v. Koehler¿(1990) 218 Cal.App.3d 1150, 1159.¿¿“A trial court has discretion to allow amendment of any pleading at any stage of the proceedings and it has been said that¿liberality¿should be particularly displayed in allowing amendment of answers so that a defendant may assert all defenses available to him.”¿¿Ramos v. City of Santa Clara¿(1973) 35 Cal.App.3d 93, 95–96 (trial court properly allowed granted defense summary judgment based on defenses of release and accord and satisfaction despite not having been pled in the answer where plaintiff did not object to the motion on that ground and no prejudice was demonstrated as a result of failure to plead the defense in the answer).¿¿¿