TENTATIVE RULING

Defendants Gosh Enterprises, Inc., Bibibop Development LLC, and Nichaboon McClellan’s Motion for an Order Seeking Leave of the Court to File a Cross-Complaint is GRANTED.

Defendants Gosh Enterprises, Inc., Bibibop Development LLC, and Nichaboon McClellan’s Cross-Complaint is deemed filed as of the date of entry of this order.

Defendants Gosh Enterprises, Inc., Bibibop Development LLC, and Nichaboon McClellan to give notice. 

REASONING

The court may grant leave to amend the pleadings at any stage of the action. (Code Civ. Proc., § 473, subd. (a).) A party may discover the need to amend after all pleadings are completed (the case is “at issue”) and new information requires a change in the nature of the claims or defenses previously pleaded. (See Dye v. Caterpillar, Inc. (2011) 195 Cal.App.4th 1366, 1380.)

“The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified. Leave to amend should be denied only where the facts are not in dispute, and the nature of the plaintiff’s claim is clear, but under substantive law, no liability exists and no amendment would change the result.” (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428, internal quotation marks and citations omitted.) Courts apply a policy of great liberality in permitting amendments to the complaint “at any stage of the proceedings, up to and including trial,” absent prejudice to the adverse party. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, added costs of preparation, or an increased burden of discovery. (See Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488 [trial court’s denial of leave to amend was proper where those factors were present].) If the delay in seeking the amendment has not misled or prejudiced the other side, the liberal policy of allowing amendments prevails. (See Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565 [describing same].)

A motion for leave to amend must: 

(1) Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments;

(2) State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and

(3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.

(Cal. Rules of Court, rule 3.1324(a).) 

Further, a separate declaration must accompany the motion and must specify the following:

(1) The effect of the amendment;

(2) Why the amendment is necessary and proper;

(3) When the facts giving rise to the amended allegations were discovered; and

(4) The reasons why the request for amendment was not made earlier.

(Cal. Rules of Court, rule 3.1324(b).)

Defendants Gosh Enterprises, Inc., Bibibop Development LLC, and Nichaboon McClellan (“Defendants”) move the Court for leave to file a Cross-Complaint against One Stop Refrigeration. Defendants represent that after serving their answer to the complaint, and upon further investigation, it was discovered that One Stop Refrigeration shares in whole or in part a portion of Plaintiff Larisa Khromova’s claimed damages. (Mot., Roberts Decl. ¶ 5.) Defendants have provided a copy of the proposed Cross-Complaint with the motion.

Code of Civil Procedure section 428.10, subdivision (b), provides that “[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 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.” Code of Civil Procedure section 428.50 provides that a party shall file a cross-complaint before or at the same time as the answer to the complaint, but a party may move the Court for leave to file a cross-complaint after that time. Code of Civil Procedure section 426.50 provides that the Court “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.”

The Court finds that allowing Defendants to file a cross-complaint is proper here. Defendants state that they learned of the facts supporting their cross-complaint after filing the answer, and this case is relatively new, such that the Court sees no apparent prejudice in allowing the filing of the cross-complaint. Accordingly, Defendants Gosh Enterprises, Inc., Bibibop Development LLC, and Nichaboon McClellan’s Motion for an Order Seeking Leave of the Court to File a Cross-Complaint is GRANTED. Defendants Gosh Enterprises, Inc., Bibibop Development LLC, and Nichaboon McClellan’s Cross-Complaint is deemed filed as of the date of entry of this order.