Judge: Linda S. Marks, Case: 2021-01188730, Date: 2023-05-22 Tentative Ruling

Motion for Leave to File Amended Cross-Complaint filed by Joshua G. and Janine M. Bouck

Defendants/Cross-Complainants, Joshua Gilbert Bouck and Janine Munizich Bouck, individually and as Co-Trustees of the Joshua Gilbert Bouck and Janine Munizich Bouck Living Trust dated August 24, 2016 (the “Boucks”) move for an order granting leave to file a First Amended Cross-Complaint (“FACC”). The Motion is GRANTED.

Code of Civil Procedure section 426.50 states:

A party who fails to plead a cause of action subject to the requirements of this article, 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 case 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. This subdivision shall be liberally construed to avoid

forfeiture of causes of action.

The opposition filed by Plaintiffs, Marshall A. Pieczentkowski and Sue A. Pieczentkowski, Trustees of the Marshall A. Pieczentkowski and Sue A Pieczentkowski Trust dated August 30, 2016 (the “Pieczentkowskis” or “Plaintiffs”) concedes that the new causes of action in the FACC arise out of the same facts and dispute as Plaintiffs’ First Amended Complaint. (See Opposition, 5:5-7.) This undermines any purported bad faith on the part of the Boucks or prejudice to Plaintiffs based on an argument that the Boucks are attempting to interfere with the trial date or trial preparation. Nor do Plaintiffs explain what additional discovery would be necessary for the proposed additional four causes of action against the Pieczentkowskis which arise out of the same facts as their complaint.

The papers submitted do not show bad faith, and there is a policy of liberal construction of section 426.50 to avoid forfeiture of causes of action.

The Cross-Complaint was not stayed pending arbitration as to any claim against the Pieczentkowskis. The Court’s April 17, 2023 Minute Order granting arbitration was expressly limited to certain cross-defendants stating, “Cross-Defendants WILLIAM EAGLESON and CHERYL EAGLESON, individually and as Co-Trustees of the EAGLESON FAMILY TRUST’s motion to compel arbitration of the claims asserted in the Cross-Complaint against them is GRANTED and the Cross-Complaint is stayed as to them.” (ROA 169, emphasis added.) The four (4) causes of action that the Boucks seek to add by way of the FACC—the Sixth Cause of Action for Equitable Easement, the Seventh Cause of Action for Quiet Title, the Eighth Cause of Action for Injunction, and the Ninth Cause of Action for Declaratory Relief as to Easement—are only alleged against the Pieczentkowskis and ROES 26-50. Thus, the stay pending arbitration does not apply to the four (4) causes of action the Boucks seek to add.

The Boucks are ordered to file and serve on all counsel of record the First Amended Cross-Complaint within five (5) days of this order.

Boucks’ counsel to give notice.