Judge: John J. Kralik, Case: 23BBCV02167, Date: 2024-04-19 Tentative Ruling

Case Number: 23BBCV02167    Hearing Date: April 19, 2024    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.   Allegations

Plaintiff Michael Carter (“Plaintiff”) alleges that he is a tenant of a luxury apartment complex known as the Venetian, which is owned by Defendant PBM2, LLC (“PBM2”) and managed by Defendant P.A.C. Properties Management, LLC (“P.A.C.”).  Plaintiff alleges that P.A.C. hired the property vendor Defendant Darmac Property Solutions, LLC (“Darmac”) to paint and repair Plaintiff’s apartment unit related to water leaks in the living room, primary bedroom, and the office.  He alleges that P.A.C. provided a key to his apartment to Darmac and allowed Darmac to enter the apartment while no one was present.  Plaintiff alleges that he stored valuables in the primary bathroom, including an Apple credit card ($300, reimbursed by bank), his wife’s diamond engagement ring ($13,500), his business checks ($7,000, reimbursed by bank), and business cash ($46,000).  Plaintiff alleges that on March 25, 2023, he discovered the theft when informed by the bank of several fraudulent charges.  He alleges he immediately reported the theft to P.A.C. and contacted Darmac, but Darmac refused to cooperate.  He alleges he filed a police report and there is a pending investigation.  Plaintiff claims $59,500 in property loss. 

Plaintiff also claims vehicle damage in April 2023 when the garage gate at the apartment malfunctioned and fell on top of his parked vehicle, causing about $8,000 in damages. 

The complaint, filed September 19, 2023, alleges causes of action for: (1) negligence; and (2) conversion. 

B.    Cross-Complaints

On December 5, 2023, Peter Coeler dba P.A.C. Properties and PBM 2 LLC filed a cross-complaint against Roes 1-100 for: (1) indemnity; (2) contribution; (3) apportionment of fault; (4) express indemnity; (5) breach of duty to defend; (6) breach of duty to indemnify; and (7) declaratory relief.  On February 6, 2024, Cross-Complainants filed an Amendment to the Cross-Complaint naming Roe 1 as Darmac.

On March 8, 2024, Darmac filed a cross-complaint against Peter Coeler dba P.A.C. Properties and PBM 2 LLC for: (1) total equitable indemnity; (2) partial indemnity; and (3) declaratory relief.

C.    Motion on Calendar

On February 29, 2024, Darmac filed a motion for leave to file a cross-complaint.

The motion is not opposed.

LEGAL STANDARD

“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.”  (CCP § 426.50.) 

DISCUSSION

Darmac moves for leave to file the proposed cross-complaint against Miguel Omar Hernandez-Tabares.  A copy of the proposed cross-complaint is attached as Exhibit A to the moving papers.  It seeks to allege causes of action for: (1) total equitable indemnity; (2) partial indemnity; and (3) declaratory relief.

Darmac believes that Mr. Hernandez-Tabares is the individual responsible for the theft alleged by Plaintiff.  Darmac believes that Mr. Hernandez-Tabares was not Darmac’s employee but rather a subcontractor hired by Darmac to perform the work at Plaintiff’s unit.  It argues that there is no prejudice from filing the cross-complaint as trial does not begin until January 2025, such that the parties have ample time to appear and prepare for the case. 

In support of the motion, Darmac provides the declaration of its counsel Nicole C. Barilla.  Ms. Barilla states that on January 30, 2024, her firm substituted into the case as counsel for Darmac and, upon getting up to speed on the issues in the case, she determined Mr. Hernandez-Tabares was a proper and necessary party to the litigation.  (Barilla Decl., ¶2.)  She states that on February 15, 2024, she attended the CMC and advised the Court that she would be seeking leave to file a cross-complaint against him.  (Id., ¶3.)  She states that no depositions have taken place in this action and that trial is set for July 21, 2025.  (Id., ¶¶5-6.) 

The Court finds that there is substantive merit to granting the motion.  The motion for leave to file a cross-complaint is granted. 

CONCLUSION AND ORDER

            Defendant Darmac Property Solutions, LLC’s motion for leave to file a cross-complaint is granted.  Defendant is ordered to electronically file a separate copy of the cross-complaint this date following the hearing on the matter.