Judge Kerry Bensinger, Case Number: 20STCV17189, Date: 2023-05-26 Tentative Ruling

On May 6, 2020, Plaintiff, Patricia Vicini, filed this action against Defendant, City of Los Angeles, for injuries arising out a of a May 6, 2018 trip and fall on a raised portion of the sidewalk in front of 12137 Moorpark Street in Studio City, California. Defendant filed an Answer to the Complaint on December 8, 2021.

On May 2, 2023, Defendant filed this motion seeking leave to file a cross-complaint against proposed Cross-Defendants, Bharat Vithalbhai Patel and Bharat Patel and Asha C. Patel Family Trust, for indemnification, apportionment of fault, and declaratory relief. Plaintiff opposes and Defendant replies.

A party against whom a cause of action has been asserted in a complaint or cross-complaint may file a cross-complaint asserting any cause of action against a person alleged to be liable thereon, whether or not such person is already a party to the action, if the cause of action asserted in the cross-complaint arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him. (Code Civ. Proc. § 428.10, subd. (b)(1).)

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. (Code Civ. Proc. § 428.50, subd. (a).) Any other cross-complaint may be filed at any time before the court has set a date for trial. (Code Civ. Proc. § 428.50, subd. (b).) 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, subd. (c).) A party who fails to plead a cause of action, 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. (Code Civ. Proc. § 426.50.)

Defendant argues leave should be granted to file a compulsory cross-complaint because Defendant obtained information from Plaintiff’s deposition on March 17, 2023 that suggested for the first time that the abutting property owner shared liability for the Plaintiff’s injuries. At her deposition, Plaintiff testified she was a tenant of the abutting property at the time of the incident and had complained to the landlord about the condition of the sidewalk (Kahramanian Decl. ¶ 5, Ex. B, p. 49.) Specifically, Plaintiff’s testimony suggested that a tree located on the proposed Cross-Defendants’ property caused an uplift in the subject sidewalk and that the landlord was aware of the issue. (Id.) Due to the lack of information at the time Defendant answered the Complaint, Defendant did not file a cross-complaint. Defendant further argues the failure to file a cross-complaint at the time it answered the Complaint constitutes inadvertence, mistake, surprise and/or excusable neglect.

Plaintiff contends that Defendant seeks leave to file a compulsory cross-complaint that is neither compulsory nor based upon the correct statute. Defendant seeks leave based on Code of Civil Procedure section 426.30. That section provides that “if a party against whom a complaint has been filed and served fails to allege in a cross-complaint any related cause of action which (at the time of serving his answer to the complaint) he has against the plaintiff, such party may not thereafter in any other action assert against the plaintiff the related cause of action not pleaded.” (Emphasis added.) In other words, filing a proposed cross-complaint is compulsory if the claims to be asserted arise from the same occurrence, transaction, or series of transactions with the plaintiff. Here, Defendant seeks to file a cross-complaint against Plaintiff’s landlords. Section 426.30 is inapplicable. Defendant’s argument, in reply, is confusing and does not direct a different conclusion.

Notwithstanding the non-compulsory nature of Defendant’s proposed cross-complaint, the Court finds that good faith exists to grant Defendant leave. The applicable statutes are Code of Civil Procedure sections 428.50 and 426.50. Section 428.50 permits the court to grant leave to file a cross-complaint in the interest of justice at any time during the course of the action. (Code Civ. Proc., § 428.50, subd. (c).) Section 426.50 permits a court to grant leave to file a cross-complaint if the party seeking leave failed to plead a cause of action through oversight, inadvertence, mistake, neglect, or other cause and acted in good faith. (Code Civ. Proc. § 426.50.) Here, Defendant correctly cites section 426.50. Further, Defendant has demonstrated that it failed to file a cross-complaint due to inadvertence, mistake, neglect, or some other cause. There is no evidence Defendant seeks to file a cross-complaint in bad faith.[1]

The motion for leave to file a cross-complaint is GRANTED. Defendant, City of Los Angeles, is ordered to file the proposed cross-complaint within 10 days of this order.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

[1] Plaintiff contends the proposed cross-complaint does not arise from the same occurrence because it “divorces the occurrence from the issue of duty.” The point is not sufficiently clear. Plaintiff’s contention appears to be part of a larger substantive challenge to Defendant’s motion. This is improper. In considering a motion for leave to file a cross-complaint, the Court considers whether the claims are related, the reasons for the moving party’s failure to file the cross-complaint, and whether the moving party has acted in bad faith.