Judge Jill Feeney, Case 20STCV48254 2023-03-10 Tentative Ruling

Judge: Jill Feeney, Case: 20STCV48254, Date: 2023-03-10 Tentative Ruling

Case Number: 20STCV48254 Hearing Date: March 10, 2023 Dept: 30

Department 30, Spring Street Courthouse

March 10, 2023

20STCV48254

Motion for Leave to File a Cross-Complaint filed by Defendants Auburndale Properties, Inc. and The Scenic Expressions, Inc.

DECISION

The motion is granted.

The Cross-Complaint must, along with proof of service of the cross-complaint on Touchstone Television, be separately filed within five court days after the date of this order.

Moving party to provide notice.

Background

This is an action for premises liability. Plaintiff Andrew Mallon alleges he was injured when his foot went through a broken step on Defendants’ property. Plaintiff filed his Complaint against Auburndale Properties, Inc. (“Auburndale”) on December 17, 2020.

On May 12, 2021, American Home Assurance Company filed its Complaint in Intervention against Auburndale Properties, Inc.

On May 13, 2022, Plaintiff filed a Doe Amendment naming The Scenic Expressions, Inc. (“Scenic”) as a Defendant in this action.

On October 10, 2023, Defendants filed the instant motion for leave to file a cross-complaint.

Summary

Moving Arguments

Defendants move to for leave to file a Cross-Complaint against Touchstone Television Productions, LLC (“Touchstone”). Defendants allege that Auburndale owned the warehouse where Plaintiff was injured and leased the warehouse to Scenic in 2006. Scenic then subleased the warehouse to Touchstone. Auburn became the intended beneficiary of the lease to Touchstone. Touchstone was required to defend and indemnify Auburn and Scenic according to the terms of the lease and the sublease. Touchstone has denied Defendants’ tender for defense and indemnity, necessitating this motion.

Opposing Arguments

None.

Legal Standard

Code of Civil Procedure section 428.50 provides:

“(a) A party shall file a cross-complaint against any of the parties who filed the complaint or cross-complaint against him or her before or at the same time as the answer to the complaint or cross-complaint.

(b) Any other cross-complaint may be filed at any time before the court has set a date for trial.

(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.”

(Code Civ. Proc., § 428.50.)

“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 Appeal 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.)

Discussion

Defendants move for leave to file a Cross-Complaint against Touchstone.

Defendants allege that Auburndale owns the warehouse where Plaintiff was injured. (Motion, p.3.) Auburndale leased the warehouse to Scenic, which then subleased the warehouse to Touchstone. (Id.) According to the lease and sublease agreement, Touchstone must indemnify Auburndale from any claims connected with injury to any person resulting from Touchstone’s operations or activities on the premises. (Id., p.4.) Defendants’ counsel testifies that Touchstone denied Defendants’ tender of defense, leaving Defendants with no option but to file this motion. (Jonoobi Decl., ¶3.)

Defendants’ Cross-Complaint is compulsory because it arises from the same injury Plaintiff alleges in his Complaint. Defendants do not explain the delay in filing this Cross-Complaint just two months before trial. It is also unclear when Touchstone denied Defendants’ tender of defense. Nevertheless, considering public policy favoring liberal construction of Code Civ. Pro. section 426.50, Defendants’ motion is granted. Defendants properly filed a proposed cross-complaint as Exhibit A. Plaintiff has not opposed this motion.