Judge Lee W. Tsao, Case Number: 23NWCV00470, Date: 2024-01-11 Tentative Ruling

Judge: Lee W. Tsao, Case: 23NWCV00470, Date: 2024-01-11 Tentative Ruling

Case Number: 23NWCV00470 Hearing Date: January 11, 2024 Dept: C

LOPEZ v. TOLLISON

CASE NO.: 23NWCV00470

HEARING: 01/11/24

Defendant TOLLISON’s unopposed Motion for Leave to File a Cross-Complaint is GRANTED.

Moving Party to give Notice.

No Opposition filed as of January 8, 2024.

The proposed Cross-Complaint, attached as Exhibit A to the Declaration of Luis A. Valencia is NOT deemed filed and served as of the hearing date. Moving Party is ORDERED to FILE the Cross-Complaint within 5 court days of the Court’s issuance of this Order. Responsive pleadings are to be filed in accordance with the rules of civil procedure.

This action concerning real property was filed by Plaintiffs FRANCISCO LOPEZ and CASSANDRA TAMAYO (collectively “Plaintiffs”) against Defendant DENNIS TOLLISON (“Defendant” or “Tollison”) and DOES 1-50 on February 14, 2023.

Defendant Tollison now seeks leave to file a cross-complaint containing causes of action for: (1) Breach of Contract; (2) Waste; (3) Negligence; (4) Common Law Assault and Battery; (5) Intentional Infliction of Emotional Distress; and (6) Fraud.

CCP §428.50 states: “(a) 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. (b) Any other cross-complaint may be filed at any time before the court has set a date for trial. (c) 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 action.” CCP §426.50 states, “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…if the party who failed to plead the cause acted in good faith. This subdivision shall be liberally construed to avoid forfeiture of causes of action.”

Given the liberal construction associated with permitting leave to file a cross-complaint, and the lack of Opposition to the instant Motion, the Court finds that it would serve the interests of justice to grant the Motion. It is best to avoid multiplicity or duplicity of actions. The Motion is GRANTED.