Judge: Kerry Bensinger, Case: 22STCV02593, Date: 2023-03-08 Tentative Ruling

Case Number: 22STCV02593    Hearing Date: March 8, 2023    Dept: 27

 

 

 

SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

ELIJAH SHAYNE,  

Plaintiff, 

vs. 

 

MARCUS NAND, et al., 

 

Defendants. 

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     CASE NO.: 22STCV02593 

 

[TENTATIVE] ORDER RE: DEFENDANT MARCUS NAND’S MOTION FOR LEAVE TO FILE A CROSS COMPLAINT  

 

Dept. 27 

1:30 p.m. 

March 8, 2023 

 

  1. Background 

On January 21, 2022, Plaintiff Elijah Shayne filed this action against Defendant Marcus Nand arising from a motor vehicle collision.  Defendant filed a General Denial on February 25, 2021.   

On October 31, 2022, Defendant filed this Motion seeking leave to file a cross-complaint against Shakur Malik-Mehdi Forrest (“Forrest”).  The Motion is unopposed.  

  1. Legal Principles  

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.) 

  1. Application 

Defendant argues that his claims against Forrest relate to the neck injury Plaintiff allegedly sustained in the subject incident.  Though not clear from the Complaint, Defendant contends the subject incident occurred on March 22, 2019 (“March 2019 Incident”).  After receiving Plaintiff’s responses to initial discovery on July 6, 2022, Defendant determined Plaintiff was involved in a subsequent motor vehicle incident on February 21, 2022 (“February 2022 Incident”) with at fault driver and proposed Cross-Defendant Forrest.  Further, Plaintiff’s responses indicated the February 2022 Incident aggravated Plaintiff’s alleged injuries sustained in the March 2019 Incident.  Thus, because Forrest shares a portion of liability, Defendant contends liability as to the nature and cause of Plaintiff’s alleged injuries is in dispute.  (Mot., 2:5-17.) 

  The March 2022 Incident was discovered after Defendant filed his General Denial on February 25, 2021.  This Motion was filed on October 31, 2022.  In the Motion, counsel for Defendant states a cross-complaint was not filed on behalf of Defendant due to an excusable mistake on behalf of counsel’s office. 

Defendant’s Motion is unopposed and Defendant has demonstrated that he is acting with good faith.  

Defendant’s Motion is GRANTED and Defendant is ordered to file his proposed cross-complaint within 5 days of the date of this Order.  

Moving party to give notice. 

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. 

    Dated this 7th day of March 2023 

 

  

 

 

Hon. Kerry Bensinger  

Judge of the Superior Court