Judge Kerry Bensinger, Case 21STCV09584 2023-01-17 Tentative Ruling

The present action arises from personal injuries suffered by Yanna Aleksandrovich (“Plaintiff”), while frequenting a commercial property which sells restaurant supplies, known as Restaurant Depot, located at approximately 5333 W. Jefferson Boulevard in Los Angeles, California (hereinafter, “Subject Property”). On April 30, 2020, Plaintiff was shopping within the Subject Premises, when an employee negligently overloaded Plaintiff’s shopping cart with items she had purchased. While Plaintiff was exiting the Subject Premises with the overloaded shopping cart, the shopping cart broke or malfunctioned, and fell upon Plaintiff’s person, causing Plaintiff severe personal injuries.

On March 11, 2021, Plaintiff commenced the instant action by filing a Complaint against RD America, LLC, Restaurant Depot, LLC, JETRO Cash and Carry Enterprises, LLC, Ruben, and Does 1 through 50. Plaintiff’s Complaint alleges the following causes of action: (1) Negligence; (2) Strict Products Liability—Failure to Warn; (3) Strict Liability—Manufacturing Defect; (4) Strict Liability—Design Defect; and (5) Breach of Implied Warranty of Merchantability.

On June 4, 2021, Defendant Restaurant Depot, LLC (hereinafter, “Defendant”) filed an Answer.

On November 30, 2022, Defendant filed the present Motion for Leave to File Cross-Complaint. The Court observes Defendant’s Motion remains unopposed.

Code of Civil Procedure section 428.10 provides as follows: “A party against whom a cause of action has been asserted in a complaint or cross-complaint may file a cross-complaint setting forth either or both of the following: (a) Any cause of action he has against any of the parties who filed the complaint or cross-complaint against him. Nothing in this subdivision authorizes the filing of a cross-complaint against the plaintiff in an action commenced under Title 7 (commencing with Section 1230.010) of Part 3. (b) Any cause of action he has 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 his cross-complaint (1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause brought against him.” (Code Civ. Proc., § 428.10.)

Code of Civil Procedure section 428.50 provides as follows: “(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.)

Defendant Restaurant Depot, LLC (referred to as, “Defendant”) presently moves for an Order granting Defendant leave to file a Cross-Complaint against non-party The PlayHouse Group, LLC dba Rise N Grind Coffee (hereinafter, “Non-Party PlayHouse Group”) and Roes 1 to 20, pursuant to Code of Civil Procedure sections 428.10, subdivision (b). (Code Civ. Proc., § 428.10, subd. (b).) Defendant’s proposed Cross-Complaint, which is attached as Exhibit A to the Declaration of Justin A. Bubion, alleges the following causes of action against the above-named parties: (1) Breach of Written Contract; (2) Express Indemnity; (3) Declaratory Relief—Duty to Defend; (4) Equitable Indemnity; and (5) Contribution. (Bubion Decl., Ex. A.) The Court observes Defendant’s Motion remains unopposed.

Following a review of Defendant’s arguments and accompanying evidence, the Court concludes Defendant may appropriately be granted leave to file the proposed Cross-Complaint attached as Exhibit A to the Declaration of Justin A. Bubion. (Code Civ. Proc., § 428.10, subd. (b); Bubion Decl., Ex. A.) The Court observes Defendant intends to advance the proposed Cross-Complaint against a non-party. (Bubion Decl., Ex. A.) The Court additionally observes a trial date has already been set in this action and, therefore, Defendant must obtain leave of Court for the purposes of filing the proposed Cross-Complaint. (Code Civ. Proc., § 428.50, subd. (c).) The Court furthermore observes, for the purposes of obtaining leave to file the proposed Cross-Complaint, the Court must conclude the proposed Cross-Complaint advanced against Non-Party PlayHouse Group “arises out of the same transaction, occurrence, or series of transactions or occurrences” as Plaintiff’s Complaint. (Code Civ. Proc., § 428.10, subd. (b).) The Court concludes in the affirmative.

As discussed previously, Plaintiff’s Complaint alleges Defendant and Defendant’s employees acted negligently and caused Plaintiff’s personal injuries when Defendant’s employee “overloaded” Plaintiff’s shopping cart, causing the shopping car to fall upon Plaintiff’s person. (Compl., ¶¶ 8-12.) Defendant’s proposed Cross-Complaint alleges, during the time of the subject incident, Plaintiff was acting as an officer or employee of Non-Party PlayHouse, and shopping on behalf of the entity. (Bubion Decl., Ex. A at ¶¶ 5-6.) Defendant further alleges Non-Party PlayHouse holds a membership with Defendant, which provides Non-Party PlayHouse agrees to “defend, indemnify, and hold [Defendant] harmless for any and all claims, suits, proceedings, [and] damages . . . related to any . . . bodily injuries . . . arising in any way out of Your negligent or reckless acts . . . associated in any way with Your membership.” (Id., Ex. A at ¶¶ 11-13.) Defendant additionally alleges, during the time of the subject incident, Non-Party PlayHouse’s officer, Plaintiff, contributed to her own personal injuries as Plaintiff negligently “exited the Restaurant Depot store while attempting to maneuver two shopping cards at the same time, which were both loaded with products.” (Id., Ex. A at ¶ 7.) Defendant’s Cross-Complaint contends, as Non-Party PlayHouse’s officer suffered personal injuries due to her own “negligent or reckless acts”, the terms of Non-Party PlayHouse’s membership with Defendant requires Non-Party PlayHouse to defend and indemnify Defendant. (Id., Ex. A at ¶¶ 10-18.) The Court concludes Defendant’s proposed Cross-Complaint undoubtedly arises from the same occurrence as Plaintiff’s Complaint—namely, Plaintiff’s personal injuries suffered upon the Subject Premises. Accordingly, the Court concludes Defendant may appropriately be granted leave to file the proposed Cross-Complaint attached as Exhibit A to the Declaration of Justin A. Bubion. (Code Civ. Proc., § 428.10, subd. (b); Bubion Decl., Ex. A.)

Defendant Restaurant Depot, LLC’s Motion for Leave to File Cross-Complaint is GRANTED. Defendant is instructed to file the proposed Cross-Complaint attached to the Declaration of Justin A. Bubion as Exhibit A within twenty (20) days.

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.

Hon. Kerry Bensinger

Judge of the Superior Court