Judge: Kevin C. Brazile, Case: 24STCV16581, Date: 2024-11-22 Tentative Ruling

Hearing Date: November 22, 2024

Case Name: Bitri, et al. v. Hoh, et al.

Case No.: 24STCV04729

Matter: Motion for Leave to File Cross-Complaint

Moving Party: Defendants Ki Hoh and Byung Hoh

Responding Party: Unopposed

Notice: OK

Ruling: The Motion is denied.

Moving parties to give notice.

This is a habitability matter.  On February 26, 2024, Plaintiffs Redjan Bitri, Enris Bitri, Ryan Bitri, Mateo Bitri, Enkeleda Ramaj, Nesti Bitri, and Ermira Bitri filed a Complaint against Defendants Ki Hoh and Byung Hoh.

Defendants answered on August 5, 2024. 

On October 28, 2024, the Court granted a trial preference and set trial for February 24, 2024.

Defendants now seek leave to file a cross-complaint against a new party, the HOA or Grant Park East Homeowners Association, for (1) indemnity, (2) apportionment of fault, (3) and declaratory relief.  Defendants contend that the HOA is actually liable for Plaintiffs’ damages.

Cross-complaints fall into two categories—permissive and compulsory.  Compulsory cross-complaints consist of those causes of action existing at the time of service of the answer that the defendant must bring against the plaintiff, or else forfeit the right to bring them in any other action.  (Code Civ. Proc. § 426.30(a).)  Specifically, compulsory cross-complaints consist of those causes of action that “arise out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint.”  (Id. § 426.10(c).)  To avoid piecemeal litigation, courts liberally construe the term “transaction”—it is “ ‘not confined to a single, isolated act or occurrence . . . but may embrace a series of acts or occurrences logically interrelated.’ ” (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 960.)  Parties seeking to file untimely compulsory cross-complaints may file with the Court for leave to do so, even though the failure to timely file resulted from oversight, inadvertence, mistake, neglect, or other cause.  (Code Civ. Proc. § 426.50.)  In such a case, after notice to the adverse party, the Court must grant leave to file the cross-complaint if the party acted in good faith.  

Unrelated claims and those claims arising after service of the answer are permissive, not compulsory.  (Crocker Nat. Bank v. Emerald (1990) 221 Cal.App.3d 852, 864.)  Permissive cross-complaints are governed by Code of Civil Procedure § 428.50(c), which provides, “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.”  The decision to grant permission to file a permissive cross-complaint rests within the sound discretion of the trial court.  (Orient Handel v. United States Fid. & Guar. Co. (1987) 192 Cal.App.3d 684, 701.)

Previously, the Court found that “joint, successive, and concurrent tortfeasors are not typically necessary parties (Witkin, Cal. Proc. 6th Plead § 201 (2024))”.  Furthermore, a cross-complaint for indemnity is not compulsory in nature.  (Seee Cal. Civ. Ctrm. Hbook. & Desktop Ref. § 12:23 (2024 ed.) [“a declaratory relief action for indemnity does not constitute a compulsory cross-complaint.”]; Cal. Civ. Prac. Procedure § 9:127 [“Generally, a cause of action for equitable indemnity against third parties does not . . . constitute a compulsory cross-complaint.”].)  

Given that the proposed cross-complaint is permissive but a trial preference has already been granted, the Court, in the exercise of its discretion, will deny the instant Motion.

Moving parties to give notice.