Judge: Katherine Chilton, Case: 21STLC01691, Date: 2022-11-07 Tentative Ruling

Case Number: 21STLC01691     Hearing Date: November 7, 2022    Dept: 25

PROCEEDINGS:      MOTION FOR LEAVE TO FILE A CROSS-COMPLAINT

MOVING PARTY:   Defendant Victor Khalil

RESP. PARTY:         None

MOTION FOR LEAVE TO FILE A CROSS-COMPLAINT

(CCP §§ 426.50, 428.50)

TENTATIVE RULING:

Defendant Victor Khalil’s Motion for Leave to File a Cross-Complaint is GRANTED.  Defendant is ordered to file the proposed cross-complaint within five (5) days of notice of this order.

SERVICE: 

[   ] Proof of Service Timely Filed (CRC, rule 3.1300)                 OK

[   ] Correct Address (CCP §§ 1013, 1013a)                                                 OK

[   ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     OK

OPPOSITION:          None filed as of November 2, 2022.                       [   ] Late                      [X] None

REPLY:                     None filed as of November 2, 2022.                       [   ] Late                      [X] None

ANALYSIS:

I.                Background

On February 26, 2021, Plaintiff Construction Servicing Center, Inc., a California corporation dba SUNUSO Energy (“Plaintiff”) filed an action against Defendants Victor Khalil (“Victor”) and Odette Khalil (“Odette”), (collectively “Defendants”) for breach of contract, common count – goods and services rendered, and common count – quantum meruit.  (Compl.)  The action arose out of an alleged agreement wherein Plaintiff was to construct and install a solar panel system on property owned by Defendants.  (Compl. ¶ 9.)

On May 6, 2021, Defendants filed a joint Answer to the Complaint.

On July 27, 2022, Defendant Victor filed the instant Motion for Leave to File a Cross-Complaint (“Motion”).  No opposition has been filed.

On August 2, 2022, Defendants jointly field an Ex Parte Application for Order Shortening Time for Hearing on Motion for Leave to File a Cross-Complaint and Application to Continue Trial and Trial Related Deadlines.  On August 4, 2022, the Court granted in part the Ex Parte Application and continued the Non-Jury Trial scheduled for August 26, 2022, to March 8, 2023.  (8-4-22 Minute).  The Court also continued all trial related deadlines to correspond with the new trial date.  (Ibid.)

II.              Legal Standard

Code of Civil Procedure § 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.”

            “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.  [Citation.]’  [Citations.]’  [Citation.]”  (Ibid. at 100.)

III.            Discussion

The instant action arose out of an alleged agreement wherein Plaintiff was to construct and install a solar panel system on property owned by Defendants.  (Compl. ¶ 9.)  Defendant Victor seeks to file a Cross-Complaint against Plaintiff Construction Servicing Center, Inc. for eight different causes of action, stating that these causes of action “directly relate to the subject matter of the existing controversy between the parties and their inclusion will not result in prejudice to the parties.”  (Ibid. at p. 2.)  Furthermore, “[a]llowing the proposed amendment will promote efficient resolution of all claims between the parties.”  (Ibid.)

Defendant Victor Khalil submits his declaration in support of the Motion.  He states that believed that his prior counsel, Andrew Rauch, had filed a Cross-Complaint along with the Answer.  (Khalil Decl. ¶ 2.)  Defendant discovered that his prior counsel had failed to file the Cross-Complaint in July 2022, when he retained new counsel.  (Ibid. at ¶ 2.)  Immediately after retaining new counsel, Defendant had new counsel file the instant Motion.  (Ibid. at ¶ 3.)  Defendant also states that the claims in the Proposed Cross-Complaint arose in February 2022, when the solar energy system installed by Plaintiff on his property began to malfunction.  (Ibid. at ¶ 4.)  The Proposed Cross-Complaint against Plaintiff/Cross-Defendant is attached to Defendant’s declaration.  (Ibid. at ¶ 3, Ex. A.)

Plaintiff has not opposed the Motion.

As discussed above, § 426.50 is liberally construed in favor of granting a motion to file a cross-complaint and must be granted unless the moving party acts in bad faith.  The Court discerns no bad faith on Defendant’s part.  On July 25, 2022, Defendants Victor and Odette Khalil filed a Substitution of Attorney substituting Attorney Andrew Rauch with Attorney Michelangelo Tatone.  Two days later, on July 27, 2022, Defendant Victor filed the instant Motion.

Accordingly, the Motion is GRANTED.  Defendant is ordered to file the Cross-Complaint.

IV.           Conclusion & Order

For the foregoing reasons,

Defendant Victor Khalil’s Motion for Leave to File a Cross-Complaint is GRANTED.  Defendant is ordered to file the proposed cross-complaint within five (5) days of notice of this order.

Moving party is ordered to give notice.