Judge Jill Feeney, Case 20STCV27490 2023-02-08 Tentative Ruling

This is an action for negligence arising from a slip and fall incident which took place in May 2019. Plaintiff Doris O. Lainez filed her Complaint against Defendants Restaurant Depot, LLC dba Restaurant Depot Store #53 and Jetro Cash and Carry Enterprises, LLC on July 21, 2020.

Defendants move for leave to file a cross-complaint on the grounds that their claims in the proposed cross-complaint arise out of the same transactions and occurrences as those in Plaintiff’s Complaint. Plaintiff was negligent because she was wearing prohibited footwear, failed to adhere to warning signs regarding appropriate footwear, and failed to exercise reasonable care to avoid walking on or over a spilled substance. Additionally, Defendants argue that Plaintiff was shopping on behalf of Sirenita’s Restaurant, Inc. under its membership with Restaurant Depot. Restaurant Depot’s written terms and conditions of membership require Sirenita’s to defend and indemnify Defendants for negligence caused by anyone using its membership.

(c)¿A party shall obtain leave of court to file any cross-complaint except one filed¿within¿the time¿specified in subdivision (a)¿or¿(b).¿ Leave may be granted in the interest of justice at any time during the course of the action.”

“A party who fails to plead a cause of action subject to the requirements of this article, whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave to amend his pleading, or to file a cross-complaint, to assert such cause at any time during the course of the action. The court, after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to amend the pleading, or to file the cross-complaint, to assert such cause if the party who failed to plead the cause acted in good faith. This subdivision shall be liberally construed to avoid forfeiture of causes of action.” (Code Civ. Proc., § 426.50.) (Emphasis added.)

The Court of Appeals has explained: “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. Factors such as oversight, inadvertence, neglect, mistake or other cause, are insufficient grounds to deny the motion unless accompanied by bad faith.” (Silver Organizations Ltd. v. Frank¿(1990) 217 Cal.App.3d 94, 98–99.) “‘‘Bad faith,’ is defined as ‘[t]he 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; . . . it contemplates a state of mind affirmatively operating with furtive design or ill will. (Id. at 100.)

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.)

Defendants move for leave to file a cross-complaint against Sirenita’s Restaurant, Inc. on the grounds that the causes of action in Defendants’ proposed cross-complaint arise out of the same transactions and occurrences as the causes of action in Plaintiff’s Complaint.

Defendants’ proposed cross-complaint alleges that at the time of the incident, Plaintiff caused or contributed to her own injuries by wearing prohibited footwear, failing to adhere to warning signs regarding appropriate footwear, and failing to exercise reasonable care to avoid walking on or over a spilled substance. The proposed cross-complaint also alleges that Plaintiff was shopping on behalf of Sirenita’s Restaurant, Inc. under its membership with Restaurant Depot. Defendants’ counsel testifies that his office issued a written tender of defense and indemnity to Sirenita’s. (Bubion Decl., ¶6.) Sirenita’s did not respond. (Id.) Defendants now seek indemnity and contribution from Sirenita’s for Plaintiff’s negligence. (Id., ¶4.)

Defendants are entitled to leave to file a cross-complaint because their claims arise from a related cause of action arising from the same transactions or occurrences as the claims alleged in Plaintiff’s Complaint. There is no evidence of bad faith and Plaintiff does not oppose this motion. Defendants’ motion is granted.