Judge: Lisa R. Jaskol, Case: 22STCV29448, Date: 2024-02-13 Tentative Ruling
Case Number: 22STCV29448 Hearing Date: February 13, 2024 Dept: 28
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On September 9, 2022, Plaintiff Khloe Lopez, by and through her guardian ad litem Jesus Lopez (“Plaintiff”), filed this action against Defendants County of Los Angeles (“County”), City of Pomona (“City”), Lori Ann Thomas, Arryianna Tomas, and Does 1-50 for negligence and premises liability.
On September 20, 2022, Plaintiff filed a first amended complaint adding a claim for dangerous condition of public property.
On October 24, 2022, the Court dismissed the County without prejudice at Plaintiff’s request.
On November 29, 2022, the City filed an answer.
On January 3, 2023, Plaintiff amended the complaint to include Defendant Maribel Vazquez (“Vazquez”) as Doe 1.
On January 17, 2023, the Court dismissed Lori Ann Thomas and Arryianna Thomas without prejudice at Plaintiff’s request.
On September 20, 2023, the clerk entered Vazquez’s default.
On November 1, 2023, the City filed a motion for leave to file a cross-complaint to be heard on February 13, 2024. No opposition has been filed.
Trial is currently scheduled for July 8, 2024.
PARTY’S REQUEST
The City requests leave to file a cross-complaint against Vazquez for total equitable indemnity, partial equitable indemnity, and declaratory relief.
LEGAL STANDARD
Code of Civil Procedure section 426.30 provides:
“(a) Except as otherwise provided by statute, if a party against whom a complaint has been filed and served fails to allege in a cross-complaint any related cause of action which (at the time of serving his answer to the complaint) he has against the plaintiff, such party may not thereafter in any other action assert against the plaintiff the related cause of action not pleaded.
“(b) This section does not apply if either of the following are established:
“(1) The court in which the action is pending does not have jurisdiction to render a personal judgment against the person who failed to plead the related cause of action.
“(2) The person who failed to plead the related cause of action did not file an answer to the complaint against him.”
(Code Civ. Proc., § 426.30.)
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.)
DISCUSSION
In her first amended complaint, Plaintiff alleges that on October 24, 2020, she fell on an uneven sidewalk in the City and was injured.
In its motion, the City asserts that Vazquez owns the property where Plaintiff fell but the City did not previously file a cross-complaint against Vazquez as the result of oversight and inadvertence.
The Court grants
the motion.
CONCLUSION
The Court GRANTS Defendant City of Pomona’s motion for leave to file a cross-complaint against Cross-Defendants Maribel Vazquez and Roes 1-100 for total equitable indemnity, partial equitable indemnity, and declaratory relief. Defendant City of Pomona 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.