Judge Kerry Bensinger, Case 21STCV23666 2023-01-27 Tentative Ruling

On June 25, 2021, plaintiffs Kerrigan Schipske and Dagoberto Bribiesca (collectively, “Plaintiffs”) filed this action against defendant GNS Development dba Golf N’ Stuff (“Defendant”), asserting two causes of action for (1) premises liability and (2) general negligence.

The Complaint alleges the following. On July 14, 2019, plaintiff Kerrigan Schipske was driving a Go-Kart (owned and maintained by the Defendant), when the Go-Kart stalled, failed to restart, and caused Plaintiff to be struck by an oncoming Go-Kart driver driving at high speed. As a proximate result of the Defendant’s negligence, Plaintiff sustained injuries to her health, strength, and activities, which has and will continue to cause her pain, suffering, and emotional distress.

On September 26, 2022, Defendant filed the instant motion for leave to file a Cross-Complaint against the Plaintiffs.

On January 19, 2023, Defendant filed a notice of non-opposition, updating the Court that Plaintiffs’ opposition to the motion was due on January 13, 2023, but as of the filing of the notice of non-opposition, no opposition had been filed.

“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, subdivision (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, subdivision (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) [above]. Leave may be granted in the interest of justice at any time during the course of the action.” (Code Civ. Proc. § 428.50, subdivision (c).)

“The reason for allowing cross-complaints is to have a complete determination of a controversy among the parties in one action, thus avoiding circuity of action and duplication of time and effort.” (City of Hanford v. Superior Court (1989) 208 Cal.App.3d 580, 587.)

Defendant moves for an order granting it leave to file a Cross-Complaint against the Plaintiffs. Defendant argues that there is good cause to grant the motion because the allegations in the proposed pleading arise out of the same transaction, occurrence, and events as set forth in the Complaint and seeks equitable indemnity against the Plaintiffs.

Defense counsel attests to the following facts. Defendant filed its Answer to the Complaint on February 23, 2022. (Motion, declaration of Lauren K. Kim (“Kim Decl.”), ¶ 2.) Shortly thereafter, Defendant began a further investigation of the case. (Kim Decl., ¶ 3.) After initial review of the facts, Plaintiffs’ discovery responses, and new information obtained regarding the incident during Plaintiff’s deposition, Defendant discovered that it was Plaintiffs’ fault that the collision occurred because it was their minor daughter, Brenda Elizabeth Bribiesca (born January 28, 2010, currently 12 years old) that collided with plaintiff Kerrigan Schipske. (Kim Decl., ¶ 4.) On September 5, 2022, defense counsel emailed Plaintiffs’ counsel to ask whether the Plaintiffs would agree to stipulate to Defendant filing the Cross-Complaint, but Plaintiffs’ counsel refused. (Kim Decl., ¶¶ 4, 5 [the Court notes that defense counsel’s declaration contains two paragraphs numbered “4”].) Attached to defense counsel’s declaration is a copy of the proposed Cross-Complaint. (Kim Decl., ¶ 6.)

The Court will exercise its discretion to consider Plaintiffs’ late-filed opposition.

First, Plaintiffs argue, Defendant fails to support its motion with admissible evidence.

However, defense counsel’s declaration was provided under oath and, therefore, is evidence.

Second, Plaintiffs argue, “Defendant should not be permitted to file a late, baseless, vague pleading and bring in a minor whose identity and alleged involvement in the accident has been known to [Defendant] for at least three years.” (Opposition, p. 5:14-16.)

As to timeliness, it is true that Code of Civil Procedure section 428.50, subdivision (a), requires “[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.”

Here, Defendant should ideally have filed its Cross-Complaint before or at the same time it filed its Answer to the Complaint, on February 23, 2022.

However, Code of Civil Procedure section 428.50, subdivision (c), also states that if the Defendant has missed that deadline, it can “obtain leave of court to file … [the] cross-complaint ….” Further, such “[l]eave may be granted in the interest of justice at any time during the course of the action.” (Code Civ. Proc. § 428.50, subdivision (c).) Courts have interpreted the phrase “at any time during the course of the action,” to mean any time before judgment has been entered. (See City of Hanford v. Superior Court, supra, 208 Cal.App.3d at p. 587 [“We conclude ‘during the course of the action’ should not be construed to permit the filing of a cross-complaint after final judgment has been entered on the underlying complaint”]; Orient Handel v. United States Fid. & Guar. Co. (1987) 192 Cal.App.3d 684, 701 [finding that a trial court did not abuse its discretion by granting leave to file a cross-complaint too close to the time set for trial].)

Here, Defendant’s motion is not untimely because there is no judgment and trial has yet to occur.

To the extent Plaintiffs are arguing that the pleading is uncertain or fails to state facts sufficient to constitute a cause of action pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and (f)), the proper vehicle for such arguments is a demurrer.

Third, Plaintiffs argue, Defendant has not shown inadvertence, mistake, or neglect in failing to timely file the Cross-Complaint. Plaintiffs also argue that the motion is brought in bad faith.

“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 (“Silver”).)

“‘“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.]” (Silver, supra, 217 Cal.App.3d at p. 100.)

Here, the Court finds no evidence of bad faith. Therefore, even if there was evidence (and there has been no evidence presented) of inadvertence, mistake, or neglect, such grounds are insufficient to deny the motion.

The Court orders Defendant GNS Development dba Golf N’ Stuff to file and serve its Cross-Complaint within 10 days of this ruling.

The cross-defendants are ordered to file and serve their responsive pleading within 30 days of service.

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’s 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