Judge: Holly J. Fujie, Case: 21STCV11525, Date: 2023-02-28 Tentative Ruling

Case Number: 21STCV11525    Hearing Date: February 28, 2023    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

AND RELATED CROSS-ACTIONS

MOVING PARTY: Defendant Donna Melby (“Melby”)

RESPONDING PARTY: Defendant KLM, Inc. (“KLM”)

The Court has considered the moving, opposition and reply papers.

BACKGROUND

This action arises out of alleged damage to Plaintiff’s residential property.  On March 25, 2021, Plaintiff filed a complaint (the “Complaint”) alleging: (1) negligence; (2) strict liability; and (3) lateral support.  The Complaint alleges that construction at Melby’s neighboring property caused Plaintiff’s property to be damaged.  

On January 31, 2023, Melby filed a motion for leave to file a cross-complaint (the “Motion”).  The proposed cross-complaint (the “XC”) alleges against KLM: (1) total equitable indemnity; (2) contribution and apportionment; (3) comparative fault; (4) express contractual indemnity; (5) declaratory relief; (6) breach of contract; (7) declaratory relief regarding duty to defend; and (8) declaratory relief regarding duty to indemnify.

REQUEST FOR JUDICIAL NOTICE

            KLM’s Request for Judicial Notice is GRANTED.

DISCUSSION

A party against whom a complaint has been filed and served who fails to allege in a cross-complaint any related cause of action which, at the time of serving his answer to the complaint, he has against the plaintiff may not thereafter assert the unpleaded related cause of action against the plaintiff in any other action.  (CCP § 426.30, subd. (a).)  A related cause of action is a cause of action which arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint.  (CCP § 426.10, subd. (c).) 

CCP section 426.50 provides that the court, after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to amend a pleading or to file a cross-complaint.  A policy of liberal construction of CCP section 426.50 to avoid forfeiture of causes of action is imposed on the trial court.  (Silver Organizations Ltd. v. Frank (1990) 217 Cal.App.3d 94, 98-99.)  A motion for leave to file a cross-complaint at any time during the course of the action must be granted unless bad faith of the moving party is demonstrated where forfeiture would otherwise result.  (Id. at 99.)  Factors such as oversight, inadvertence, neglect, mistake or other cause are insufficient grounds to deny the motion unless accompanied by bad faith.  (Id.)  Bad faith is defined as the opposite of “good faith,” generally implying or involving actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake, but by some interested or sinister motive, not simply bad judgment or negligence, but rather the conscious doing of a wrong because of dishonest purpose or moral obliquity.  (Id. at 100.)  Substantial evidence must support the court’s decision that a defendant has not acted in good faith.  (Id. at 99.)

KLM’s sole argument in its opposition (the “Opposition”) is that the Motion is not timely.  On January 25, 2023, after holding an ex parte hearing, the Court issued an order providing that Melby was required to file the Motion by January 27, 2023.  KLM argues that the Motion should be denied because it was not filed until January 31, 2023.  In the reply (the “Reply”), Melby contends that the Motion was initially filed and served on Friday, January 27, 2023 but was rejected by the Court because the Notice of Motion did not include a hearing reservation identification number.  (See Declaration of Natasha A. Kader (“Kader Decl.”)  ¶¶ 3-7, Exhibits A-B.)[1]  Melby was notified of the filing’s rejection and reason for its rejection by the Court on the following Monday, January 30, 2023.  (Kader Decl. ¶¶ 7-8.)  Melby omitted the reservation number in the January 27, 2023 Notice of Motion as a result of a misunderstanding from the January 25, 2023 ex parte hearing.  (Kader Decl. ¶ 5.)

Although the Motion was not officially filed until January 31, 2023, Melby originally attempted to file and serve it by the January 27, 2023 deadline.  The filing was rejected due to a technical error and Melby promptly refiled.  There is no evidence that Melby acted in bad faith.  The Court therefore GRANTS the Motion.  Melby is ordered to file the proposed XC within five court days of this order.

            Moving party is ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org stating your intention to appear in person.  The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.  This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

        Dated this 28th day of February 2023