Judge Holly J. Fujie, Case 22STCV05624 2023-05-01 Tentative Ruling

MOVING PARTY: Group IX BP Properties, LP (“Group IX”), Group IX BP Properties, Inc., Pama Management, Inc., Golden Management Services Inc., Swaranjit S. Nijjar, and Daljit K. Kler (collectively, “Moving Defendants”)

This action arises out of an alleged public nuisance caused by gang-related activity at an apartment complex located in the North Hollywood area of Los Angeles (the “Property”). Plaintiff’s complaint (the “Complaint”), filed on February 15, 2022, alleges: (1) public nuisance; and (2) unfair competition.

On April 3, 2023, Group IX filed a motion for leave to file a cross-complaint (the “XC Motion”). Group IX seeks to file a cross-complaint (the “XC”) against non-party the City of Los Angeles (the “City”) that alleges: (1) public nuisance; (2) private nuisance; and (3) dangerous condition on public property. The XC alleges that the City’s poor maintenance of an alley that abuts the Property has led to gang activity and criminal conduct that has affected the Property.

On April 3, 2023, Moving Defendants also filed a motion to continue the trial date (the “Trial Motion”) to October 2023.

Under California Code of Civil Procedure (“CCP”) section 428.10, subdivision (b), a party against whom a cause of action has been asserted in a complaint or cross-complaint may file a cross-complaint setting forth any cause of action he has against a person alleged to be liable thereon, whether or not such person is already a party to the action, if the cause of action asserted in his cross-complaint: (1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him; or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause brought against him. (CCP § 428.10, subd. (b).) Permission to file a permissive cross-complaint is solely within the trial court's discretion. (Crocker Nat. Bank v. Emerald (1990) 221 Cal.App.3d 852, 864.)

As a preliminary matter, the Court notes that the XC Motion sets forth the legal standard for allowing a defendant to file a mandatory cross-complaint against a plaintiff, rather than the standard for permissive cross-complaints. The City is not a party to the Complaint, and the proposed XC is therefore a permissive cross-complaint. (See Insurance Co. of North America v. Liberty Mutual Ins. Co. (1982) 128 Cal.App.3d 297, 303.) In addition, although Group IX previously raised the argument regarding the City’s culpability for the nuisance in the alley when it opposed Plaintiff’s motion for preliminary injunction (the “PI Motion”),[1] the XC Motion does not set forth the reasons why Group IX did not seek to file the XC sooner.[2] For these reasons, the Court DENIES the XC Motion.

California Rules of Court (“CRC”), rule 3.1332(a) provides that trial dates are firm to ensure prompt disposition of civil cases. (CRC, r. 3.1332(a).) Continuances are thus generally disfavored. (CRC, r. 3.1332(b).) Nevertheless, the trial court has discretion to continue trial dates. (Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1246.) Each request for continuance must be considered on its own merits and is granted upon an affirmative showing of good cause. (CRC, r. 3.1332(c).) Circumstances that may indicate good cause include: (1) the unavailability of an essential lay or expert witness due to death, illness, or other excusable circumstances; (2) the unavailability of a party due to death, illness, or other excusable circumstances; (3) the unavailability of trial counsel due to death, illness, or other excusable circumstances; (4) the substitution of trial counsel where there is an affirmative showing that the substitution is required in the interests of justice; (5) the addition of a new party if (a) the new party has not had a reasonable opportunity to conduct discovery and prepare for trial, or (b) the other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party’s involvement in the case; (6) a party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or (7) a significant, unanticipated change in the status of the case as a result of which the case is not ready for trial. (Id.)

The court must also consider such relevant factors as: (1) the proximity of the trial date; (2) whether there was any previous continuance, extension of time, or delay of trial caused by any party; (3) the length of the continuance requested; (4) the availability of alternative means to address the problem that gave rise to the motion or application for a continuance; (5) the prejudice that parties or witnesses will suffer as a result of the continuance; (6) if the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; (7) the court’s calendar and the impact of granting a continuance on other pending trials; (8) whether trial counsel is engaged in another trial; (9) whether all parties have stipulated to a continuance; (10) whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and (11) any other fact or circumstance relevant to the fair determination of the motion or application. (CRC, r. 3.1332(d).)

Moving Defendants’ counsel substituted in on March 14, 2023. (Declaration of Jerry A. Behnke (“Behnke Decl.”) ¶ 2.) Discovery remains ongoing and Moving Defendants hope to file dispositive motions before trial. (See Behnke Decl. ¶¶ 3-4.)[3] There are currently hearing dates reserved for Motions for Summary Judgment on September 8, 13, 15 and 29, 2023.

The Court finds that a short continuance is in the interest of justice to accommodate ongoing discovery. The Court therefore GRANTS the Trial Motion and continues the trial date to October 31, 2023 at 9:30 a.m. in this department and the final status conference to October 18, 2023 at 8:30 a.m. in this department. All pre-trial deadlines are continued to correspond with the new trial date.

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.

[1] The Court partially granted the PI Motion on July 6, 2022.

[2] In law and motion practice, factual evidence is supplied to the court by way of declarations. (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224.)

[3] There are pending motions concerning discovery disputes that will be heard on May 9, 2023 and June 26, 2023.