Judge: Lee S. Arian, Case: 23STCV09897, Date: 2023-12-14 Tentative Ruling

Case Number: 23STCV09897    Hearing Date: December 14, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On May 3, 2023, Plaintiff Jean M. Damus (“Plaintiff”) filed a Complaint against Defendants Protos Security (Protos), 99 Cents Only Stores, LLC (99 Cents), John Doe (“Doe”), and Does 1 through 50 alleging causes of action for battery, premises liability, and general negligence. The Complaint alleges that Plaintiff was shopping at the 99 Cents Only Stores when Defendant Doe hit Plaintiff in the head with a can of Spam.

On August 25, 2023, Defendant Protos filed a cross-complaint against Jovent Security Services, Inc. (“Jovent”) alleging causes of action for contractual indemnity, comparative negligence, contribution, equitable indemnity, and declaratory relief.

On November 17, 2023, Defendant 99 Cents filed the instant motion for leave to file a Cross-Complaint. The motion is unopposed.

II.          LEGAL STANDARD

Code of Civil Procedure § 428.10 provides the following:

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.)

After the trial date has been set, a party seeking to file a cross-complaint must obtain leave of court. (Code Civ. Proc., § 428.50(b).) Leave may be granted in the interest of justice at any time during the course of the action. (Id., § 428.50(c).) Indeed, where a cause of action would otherwise be lost, leave to amend is appropriate even if the party was negligent in not moving for leave to amend earlier. “The legislative mandate is clear. 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.” (Silver Organizations, Ltd. v. Frank (1990) 217 Cal.App.3d 94, 98-99.)

III.        DISCUSSION

Defendant 99 Cents asserts it is in the interests of justice to allow leave to file a cross-complaint based on newly discovered information regarding Defendant Protos and the identity of Cross-Defendant Jovent. Counsel for 99 Cents attests that he was not served with Protos’ Answer and Cross-Complaint until September 26, 2023. At that time, he was first advised of the legal name for Protos (Security Services Holdings, LLC dba Protos Security) and the allegation that Jovent was or might be involved. Counsel for Protos sent him the contract between Protos and 99 Cents on October 6, 2023 and the contract between Protos and Jovent on October 10, 2023. (Plessala Decl., ¶4.) Thus 99 Cents asserts that good cause exists and it is in the interest of justice to permit leave to file the Cross-Complaint as Protos and Jovent are new parties to the action and moving party has only recently ascertained the basis for indemnity and information on Protos. Further, 99 Cents only recently learned of the identity and involvement of Jovent and sought this relief immediately upon learning this information. (Plessala Decl., ¶6.)

Based on the foregoing, the Court finds it is in the interests of justice to allow 99 Cents to file the Cross-Complaint against Protos and Jovent for indemnity based on the newly discovered identity and contract.

IV.         CONCLUSION

Accordingly, the unopposed Motion is GRANTED.

Moving party is ordered 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.  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 14th day of December 2023