Judge: Lee S. Arian, Case: 22STCV33023, Date: 2024-02-22 Tentative Ruling

Case Number: 22STCV33023    Hearing Date: February 22, 2024    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Defendant Inglewood Park Cemetery (“Defendant”)      

RESPONDING PARTY: Unopposed

I.            INTRODUCTION

This is an action arising from the use of a defective casket lowering device, which caused Plaintiffs’ mother’s casket to tip over as it was being lowered into a grave. On October 7, 2022, Plaintiffs Wendy Serrano, Marlene Serrano, Manuel Serrano, and Andrew Serrano, by and through his guardian ad litem, Wendy Serrano (collectively “Plaintiffs”) filed a complaint against Defendants Inglewood Park Cemetery (“Defendant”) and DOES 1 to 10, alleging causes of action for: (1) general negligence and (2) premises liability.

On January 4, 2023, Defendant filed an answer to the complaint.

On November 7, 2023, Defendant filed and served the instant amended motion for leave to file a cross-complaint against Garcia’s Lowering Device Service, LLC (“GLDS”) (the “Motion”). The proposed cross-complaint is attached as Exhibit 1 to the declaration of Sherri Matta (“Matta”) in support of the Motion.

II.      LEGAL STANDARD

          Code Civ. Proc., § 428.50, subd. (a) provides that “[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.” “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).)

Under Code Civ. Proc. § 428.10(a) “[a] party against whom a cause of action has been asserted in a complaint or cross-complaint may file a cross complaint setting forth . . . [a]ny cause of action he has against any of the parties who filed the complaint or cross-complaint against him.” (K.R.L. Partnership v. Superior Court (2004) 120 Cal.App.4th 490, 498.) Code Civ. Proc. § 428.10(b) allows a party to file a cross-complaint alleging “[a]ny 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.” “[A] related cause of action is a cause of action which arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint.” (K.R.L. Partnership v. Superior Court, supra, 120 Cal.App.4th 490, 498.) “Cross-complaints for comparative equitable indemnity would appear virtually always transactionally related to the main action.” (Time for Living, Inc. v. Guy Hatfield Homes/All American Development Co. (1991) 230 Cal.App.3d 30, 38.)  

III.    DISCUSSION

          In support of the Motion, Matta declares that Plaintiff’s counsel agreed to file a stipulation allowing Defendant to file a cross-complaint against GLDS but has not yet returned a signed copy of the stipulation. (Matta Decl., ¶ 5; Exhibit 2.) The interests of justice would be served by permitting the filing of the proposed cross-complaint according to counsel. (Matta Decl., ¶ 6.) Counsel states that the allegations of the cross-complaint involve the same facts in Plaintiffs’ allegations against GLDS and Defendant alleges that GLDS was in some manner and at fault for the purported injuries and damages to Plaintiffs. (Matta Decl., ¶ 6.) Defendant contends that it hired GLDS to service its casket lowering devices and one of those devices malfunctioned which caused the incident. (Matta Decl., ¶ 6.) Defendant argues that the Motion should be granted as the interest of justice would be served by permitting Defendant to file a cross-complaint against GLDS. (Matta Decl., ¶ 6.)

          Based on the declaration of Matta in support of the Motion, Defendant contends that GLDS is responsible for all or some of the damages incurred by Plaintiffs. Also, the proposed cross-complaint seeks indemnity against GLDS. (Matta Decl., ¶ 4; Exhibit 1.) Thus, the cross-complaint is related to the complaint and arises out of the same occurrence as the causes of action asserted in the complaint. Accordingly, the Court finds it appropriate to allow Defendant to file its proposed cross-complaint against GLDS. Also, the Motion is unopposed which “creates an inference that the motion is meritorious.” (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

IV.     CONCLUSION

The Court therefore GRANTS Defendant’s motion for leave to file a cross-complaint against GLDS. The Court orders Defendant to file and serve the proposed cross-complaint within 5 court days so that it becomes an operative pleading in this action.

Moving party is ordered to give notice of this ruling.

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.

      Dated this 22nd day of February 2024