Judge: Holly J. Fujie, Case: 21STCV41627, Date: 2022-12-28 Tentative Ruling

Case Number: 21STCV41627    Hearing Date: December 28, 2022    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Defendants Centurion Protection Services, Ray Dundgeon, and Tom Rogers (collectively, “Moving Defendants”)

RESPONDING PARTY: Plaintiff

The Court has reviewed the moving and opposition papers.  No reply papers were filed.  Any reply papers were required to have been filed and served at least five court days before the hearing under California Code of Civil Procedure (“CCP”) section 1005, subdivision (b).

BACKGROUND

Plaintiff initiated this action by filing a complaint (the “Complaint”) on November 12, 2021.  The currently operative first amended complaint (the “FAC”), filed on November 22, 2021, alleges 10 causes of action arising out of an employment relationship. 

On September 30, 2022, Moving Defendants filed a motion for leave to file a cross-complaint (the “Motion”).  Moving Defendants seek to file a cross-complaint (the “XC”) against Plaintiff alleging: (1) breach of contract; (2) intentional interference with contractual relations; (3) intentional interference with prospective economic advantage; (4) intentional misrepresentation; (5) defamation; and (6) libel. 

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.)

The proposed XC alleges that Plaintiff falsely represented his qualifications when he applied for employment.  The proposed XC further alleges that as a condition of his employment, Plaintiff signed a nondisclosure agreement (the “NDA”), which Plaintiff breached while he was employed, after his termination in November 2020, and during the pendency of this litigation. 

Although the Motion does not clearly set forth the reasons why Moving Defendants did not seek to file the proposed XC earlier in the litigation, the Court finds that at minimum, a significant number of Moving Defendants’ allegations generally arise out of the same transaction, occurrence, or series of transactions and occurrences as those placed at issue in the FAC (Plaintiff’s employment).  Further, there is not “substantial evidence” that Moving Defendants did not act in good faith in filing the Motion.  For these reasons, the Court finds that denying the Motion is not warranted.  Due to the proximity of the trial and the inclusion of additional issues, however, the Court finds it appropriate to continue the trial to allow Plaintiff the opportunity to challenge the XC and conduct discovery.  The Court therefore GRANTS the Motion.  The trial date is continued to October 23, 2023 at 9:30 a.m. and the Final Status Conference is continued to October 10, 2023 at 8:30 a.m in this department.  All pre-trial deadlines are reset based upon the new trial date.  Moving Defendants are ordered to file the proposed XC within five court days.

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 December 2022