Judge: John J. Kralik, Case: 21BBCV00163, Date: 2022-09-02 Tentative Ruling

Case Number: 21BBCV00163    Hearing Date: September 2, 2022    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Northern California Collection Service, Inc. (“Plaintiff”) commenced this action against Defendant Oren Tobias Dayan (“Defendant”) on February 24, 2021, alleging a single cause of action for quantum meruit.  Prior to the commencement of this action, Plaintiff alleges that Disaster Protech, Inc. assigned its right, title, and interest in and to the matter, as necessary for collection purposes, to Plaintiff. 

Plaintiff alleges that within the past 4 years, Plaintiff’s assignor performed services for Defendant.  Plaintiff alleges that the value of the services amounted to $105,804.30.  Plaintiff alleges that though demand was made for the sums, Defendant did not make any payments. 

On December 28, 2021, Defendant filed an answer.

A non-jury trial is currently scheduled for February 6, 2023.

B.     Motion on Calendar

On July 21, 2022, Defendant filed an ex parte application for leave to file the cross-complaint.

On July 22, 2022, the Court held a hearing on the ex parte application.  The Court scheduled the hearing on the application for September 2, 2022 and deemed the ex parte application papers as the moving papers.  The Court ordered any opposition and reply papers to be served and filed pursuant to code.

On August 12, 2022, Plaintiff filed an opposition to the motion.

On August 26, 2022, Defendant filed a reply brief.

LEGAL STANDARD

CCP § 428.50 states in relevant part:

(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.

(CCP § 428.50.) 

DISCUSSION

            Defendant moves for leave to file a cross-complaint.  In support of the motion, Defendant provides the declaration of his counsel, David J. Furtado.  A copy of the proposed cross-complaint is attached as Exhibit A to the application papers. The proposed cross-complaint is asserted by Defendant against Disaster Protech, Inc. for a single cause of action for promissory fraud.

            Mr. Furtado states that the facts giving rise to the proposed cross-complaint were ascertained in May to July 2022, after consulting with Defendant regarding his responses to Plaintiff’s discovery requests and after the May 4, 2022 deposition of Felix Montes of Disaster Protech, which called into doubt the legitimacy of invoiced amounts for services provided.  (Furtado Decl., ¶1.)  Mr. Furtado states that upon information and belief, Disaster Protech did not draft the February 10, 2019 estimate because the “operated” named was “SUPER” and Mr. Montes testified that an estimate stating “SUPER” indicates someone outside of Disaster Protech drafted the estimate.  (Id., ¶2.)  Mr. Furtado also states that after further consideration of the evidence, Defendant recently determined that he has grounds for a claim of promissory fraud against Disaster Protech for its conduct prior to the purported assignment of the claim to Plaintiff because the invoices underlying Plaintiff’s claims for payment on services rendered do not reflect the services actually performed.  (Id., ¶3.)  Thus, Defendant seeks to assert cross-claims against Disaster Protech.  (Id., ¶4.)  Mr. Furtado states that the requested relief is in the interest of justice and that Defendant does not seek leave to file cross-claims in a bad faith manner.  (Id., ¶¶6-7.) 

            In opposition, Plaintiff argues that the motion is untimely because, on February 9, 2022, the Court set a 3-day jury trial to begin on August 29, 2022.  On July 22, 2022, the Court advanced and vacated the jury trial date of August 29, 2022, and set a non-jury trial date for February 6, 2023.  Although the filing of this motion was untimely pursuant to CCP § 428.50(a) and (b), relief may still proper under subsection (c).  As such, the Court will not deny this motion based on untimeliness.

Next, Plaintiff argues that Defendant can sue Disaster Protech in another case and that Defendant was always aware of Disaster Protech’s assignment to Plaintiff.  While the timing of bringing this motion is not ideal, Defendant sought to continue trial and seek leave to file the cross-complaint by ex parte application.  Further, even if Defendant decided to separately file an action against Disaster Protech, the interests of justice and judicial economy would be promoted by having the cases related and/or consolidated or, more conveniently, bringing all the claims in one case.

            Lastly, Plaintiff argues that Defendant’s proposed promissory fraud claim is unmeritorious and that the cross-complaint is a sham pleading.  Such arguments are better raised on a demurrer to the cross-complaint. 

            The motion for leave to file a cross-complaint is granted.

CONCLUSION AND ORDER

Defendant Oren Tobias Dayan’s motion for leave to file a cross-complaint is granted.  Defendant is ordered to electronically file a separate copy of the cross-complaint following the hearing on this matter.

Defendant shall provide notice of this order.