Judge: Lisa R. Jaskol, Case: 22STCV11915, Date: 2024-11-12 Tentative Ruling
Case Number: 22STCV11915 Hearing Date: November 12, 2024 Dept: 28
Having
considered the moving papers, the Court rules as follows.
BACKGROUND
On April 7, 2022, Plaintiff Gary Dean Swisher (“Plaintiff”) filed this action against Defendants California Department of Transportation, City of Los Angeles (“City”), Kaiser Permanente Ventures, LLC (“Ventures”), McCarthy Building Companies, Inc. (“McCarthy”), and Does 1-40 for general negligence and premises liability.
On May 20, 2022, Defendant The People of The State of California, acting by and through the Department of Transportation, erroneously sued as the California Department of Transportation (“State”) filed an answer.
On July 19, 2022, McCarthy filed an answer. On October 12, 2023, the Court dismissed McCarthy without prejudice at Plaintiff’s request.
On July 25, 2022, Ventures filed an answer. On November 28, 2022, the Court dismissed Ventures without prejudice at Plaintiff’s request.
On October 20, 2022, the Court dismissed the City without prejudice at Plaintiff’s request.
On October 26, 2022, Plaintiff amended the complaint to include Defendant Kaiser Foundation Hospitals as Doe 21 (“Kaiser”).
On December 28, 2022, Kaiser filed an answer and a cross-complaint against Cross-Defendants California Department of Transportation and Roes 1-100 for declaratory relief and comparative indemnity and equitable indemnity.
On February 1, 2023, the Court dismissed Kaiser without prejudice at Plaintiff’s request. On February 3, 2023, the Court dismissed Kaiser’s cross-complaint without prejudice at Kaiser’s request.
On September 20, 2024, the State filed a motion for leave to file a cross-complaint against the City and Roes 1-20 for breach of contract and declaratory relief. The motion was set for hearing on November 12, 2024. No party has filed an opposition.
Trial is currently scheduled for April 17, 2025.
PARTY’S REQUEST
The State asks the Court for leave to file a cross-complaint against the City and Roes 1-20 for breach of contract and declaratory relief.
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 July 14, 2021, on the sidewalk of Pacific Coast Highway near the entrance of Kaiser Permanente in Harbor City, California, Plaintiff’s bicycle hit an uneven, raised portion of the sidewalk, throwing Plaintiff from the bicycle to the ground and injuring him. Defendants controlled and maintained the property where Plaintiff was injured. Defendants failed to sufficiently maintain the property. Defendants’ lack of maintenance created a dangerous condition which caused Plaintiff’s injury. No warning signs alerted Plaintiff to the presence of a dangerous condition and the condition was not open and obvious.
B. The State’s motion for leave to file a cross-complaint
The State contends that the City is contractually obligated to indemnify the State for any damages the State is required to pay Plaintiff because a City streetlight adjacent to the accident location was not working properly when Plaintiff fell from his bicycle. According to the State, Plaintiff is likely to argue that if the light had been working properly, he would have seen the dangerous condition and avoided the accident.
The proposed cross-complaint is based on the same facts as Plaintiff’s complaint. The Court grants the motion.
CONCLUSION
The Court GRANTS Defendant The People of The State of California, acting by and through the Department of Transportation’s motion for leave to file a cross-complaint. Defendant is ordered to file and serve the 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.