Judge Jill Feeney, Case 20STCV16800 2022-09-27 Tentative Ruling

The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.

Regardless of whether there is any such agreement, each party who wishes to submit must send an email to the Court at sscdept30@lacourt.org indicating the party's intention to submit.

Include the word "SUBMITS" in all caps and the case number in the subject line of the email and in the body provide the date and time of the hearing, your name, your contact information, the party you represent, whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, or non-party.

If a party submits but still intends to appear at the hearing, include the words "SUBMITS BUT WILL APPEAR" in the subject line of the email.

If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Unless all the parties have submitted, the Court will hear argument from any party that appears at the hearing and wishes to argue. The Court may change its tentative as a result of the argument and adopt the changed tentative as the final order at the end of that hearing, even if all the parties are not present.

Be advised that after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of said motion and may adopt the tentative ruling as the order of the Court.

This is an action for premises liability arising from a slip and fall incident which took place in May 2018 in the parking lot of a liquor store. Plaintiff Shalonda Anderson filed her Complaint against Defendants Earl Ivie, Jr. and Dolores M. Ivie, as trustees of the Earl & DM Ivie Family Trust, and Suneel, Inc., dba BMW Liquor (erroneously sued as BMW Liquor Store).

Suneel seeks to file a cross-complaint against Defendant Earl Ivie, Jr., as an individual and as Trustee of the Earl and DM Ivie Family Trust for (1) Equitable Indemnity, (2) Contribution, (3) Express Indemnity, and (4) Declaratory Relief.

A party against whom a cause of action has been asserted in a complaint or cross-complaint may file a cross-complaint setting forth either or both of the following: (a) Any cause of action he has against any of the parties who filed the complaint or cross-complaint against him. Nothing in this subdivision authorizes the filing of a cross-complaint against the plaintiff in an action commenced under Title 7 (commencing with Section 1230.010) of Part 3.

(b) 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.

After the trial date has been set, a party seeking to file a cross-complaint must obtain leave of court. (Code Civ. Proc., § 428.50(b).) Leave may be granted in the interest of justice at any time during the course of the action. (Id., § 428.50(c).) Indeed, where a cause of action would otherwise be lost, leave to amend is appropriate even if the party was negligent in not moving for leave to amend earlier. “The legislative mandate is clear. A policy of liberal construction of section 426.50 to avoid forfeiture of causes of action is imposed on the trial court. A motion 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.” (Silver Organizations, Ltd. v. Frank (1990) 217 Cal.App.3d 94, 98-99.)

A cross-complaint is compulsory when a related cause of action existed at the time of serving the defendant’s answer to the complaint. (Code Civ. Proc. § 426.30, subd. (a); see also Crocker Nat. Bank v. Emerald (1990) 221 Cal.App.3d 852, 864.) 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.” (Code Civ. Proc. § 426.10, subd. (c).) Leave must be granted to file a compulsory cross-complaint when the defendant is acting in good faith. (See Code Civ. Proc. § 426.50.)

“[W]hat constitutes “good faith”-or lack of it-under Code of Civil Procedure Section 426.50 must be determined in light of and in conformity with the liberality conferred upon the trial courts by the section and by prior law. … [T]his principle of liberality requires that a strong showing of bad faith be made in order to support a denial of the right to file a cross-complaint under this section.” (Foot's Transfer & Storage Co. v. Superior Court (1980) 114 Cal.App.3d 897, 902.) A determination that the petitioner acted in bad faith may be premised on “substantial injustice or prejudice” to the opposing party. (Id. at 903.) (See also Gherman v. Colburn (1977) 72 Cal.App.3d 544, 558-59 [stating that leave was properly denied when the defendant’s motion “was merely a tactical strategic maneuver to deprive plaintiffs of a right to a jury trial”].)

Suneel seeks to file a Cross-Complaint against Earl Ivie, Jr., as an individual and as Trustee of the Earl and DM Ivie Family Trust for equitable indemnity, contribution, express indemnity, and declaratory relief. Plaintiff has not opposed the motion.

As an initial matter, Earl Ivie Jr. is deceased. If Suneel still wishes to file a cross complaint against Earl Ivie Jr. as an individual, it must amend its proposed cross-complaint to name Earl Ivie Jr.’s Estate (Code Civ. Pro. section 377.50; Cal. Prob. Code section 522, subd. (a).) Additionally, Suneel must amend their proposed cross-complaint to name the new trustees of the Earl and DM Ivie Family Trust.

The Court finds Suneel has acted in good faith and therefore, leave to file the Cross-Complaint against Earl Ivie Jr.’s personal representative or successor in interest and the trustees of the Earl and DM Ivie Family Trust.

Suneel’s counsel, Robert Ackley, states in his declaration that he took over management of this case from Emily Doty, another attorney within the same firm. (Ackley, Decl., ¶5.) After reviewing Suneel’s lease agreement with Earl Ivie, he determined that a cross-complaint against the Ivies because the accident at issue did not arise out of Suneel’s use of the leased premises. (Id.)

The facts show that Suneel’s cross-complaint is compulsory and that Suneel is acting in good faith. Counsel filed a cross-complaint after taking over the case from previous lead counsel after reviewing the parties’ lease agreement. Because Suneel seeks indemnification, contribution, and declaratory relief regarding the same incident as Plaintiff’s Complaint, Suneel’s cross-complaint involves a related cause of action. Thus, Suneel’s cross-complaint is compulsory.