Judge: Lisa R. Jaskol, Case: 21STCV41551, Date: 2024-06-25 Tentative Ruling
Case Number: 21STCV41551 Hearing Date: June 25, 2024 Dept: 28
Having
considered the moving papers, the Court rules as follows.
BACKGROUND
On November 10, 2021, Plaintiff Juan Jimenez (“Plaintiff”) filed this action against Defendants The Kroger Co., dba Food 4 Less, Matthews Real Estate Investment Services, and Does 1-25 for premises liability.
On May 16, 2023, Plaintiff amended the complaint to include Defendant Carmenita Place, LLC (“Carmenita”) as Doe 1.
On June 12, 2023, Defendant Alpha Beta Company dba Food 4 Less (incorrectly named and served as The Kroger Co., dba Food 4 Less) (“Alpha Beta”) filed an answer.
On January 29, 2024, Carmenita filed an answer. On January 30, 2024, Carmenita filed a cross-complaint against Cross-Defendants Roes 1-50 for equitable indemnity, contribution, and declaratory relief.
On May 2, 2024, Alpha Beta filed a motion for leave to file a cross-complaint, to be heard on June 25, 2024.
Trial is currently scheduled for February 20, 2025.
PARTY’S REQUEST
Alpha Beta asks for leave to file a cross-complaint against Carmenita and Roes 1-10 for indemnification, apportionment of fault, declaratory relief, and breach of contract.
LEGAL STANDARD
Code of Civil Procedure section 426.50 provides:
“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 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, 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.”
Code of Civil Procedure section 428.10 provides:
“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.)
Code of Civil Procedure section 428.50 provides:
“(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 the action.”
(Code Civ. Proc., § 428.50.)
“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. Factors such as oversight, inadvertence, neglect, mistake or other cause, are insufficient grounds to deny the motion unless accompanied by bad faith.” (Silver Org. Ltd. v. Frank (1990) 217 Cal.App.3d 94, 99.) “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.)
DISCUSSION
A. The complaint
The complaint alleges the following:
On November 10, 2019, as Plaintiff went to enter a Food 4 Less store at the Santa Fe Springs Plaza in Whittier, California, he tripped and stumbled on a broken brick on the main brick paved sidewalk at the storefront. When he regained his balance he felt a stinging sensation in his foot and he sustained injuries and damages as a result. He looked back to see that he tripped on a missing broken brick that was part of the entrance walkway. The missing broken brick near the entrance to the store was a dangerous condition that Defendants knew about or should have known about. Defendants failed to warn about or correct the dangerous condition, causing Plaintiff’s injuries and damages.
B. Alpha Beta’s motion for leave to file cross-complaint
Alpha Beta requests leave to file a cross-complaint alleging that Carmenita breached the lease between Carmenita, the owner of the shopping plaza, and Alpha Beta, the tenant, (1) by failing to maintain the common areas of the shopping plaza and creating the condition that allegedly caused Plaintiff’s injuries, (2) by failing to maintain commercial general liability insurance on Alpha Beta’s behalf, and (3) for failing to accept Alpha Beta's tender of defense and/or indemnity.
The Court has seen no evidence that Alpha Beta has acted in bad faith in seeking to file a cross-complaint. The Court grants the motion.
CONCLUSION
The Court GRANTS Defendant Alpha Beta Company dba Food 4 Less’s motion to file a cross-complaint. The Court orders Defendant Alpha Beta Company dba Food 4 Less to file its cross-complaint within 30 days of the hearing on this motion.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling with the Court within five days.