Judge: Lisa R. Jaskol, Case: 22STCV29506, Date: 2025-03-03 Tentative Ruling
Case Number: 22STCV29506 Hearing Date: March 3, 2025 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
A. Prior proceedings
On September 12, 2022, Plaintiffs Trevor Brathwaite and Trea’sure Brathwaite filed this action against Defendants Elizabeth Zion Seres (“Seres”), Brittney Benson (“Benson”), Los Angeles Unified School District (“District”), County of Los Angeles (“County”), and Does 1-25 for motor vehicle tort and general negligence.
Also on September 12, 2022, the Court scheduled the trial for March 11, 2024.
On February 9, 2024, Seres filed an answer.
On February 20, 2024, based on the parties’ oral stipulation, the Court continued the trial from March 11, 2024 to May 29, 2024, with discovery, law and motion, and pre-trial deadlines to be based on the new trial date.
On March 4, 2024, the Court found that this case (case number 22STCV29506) and case number 23STLC07239 are related within the meaning of California Rules of Court, rule 3.300(a). Case number 22STCV29506 became the lead case.
On May 3, 2024, the Court granted the parties’ stipulated request to continue the trial from May 29, 2024 to September 25, 2024, with discovery and motion cut-off dates to be based on the new trial date.
On August 19, 2024, the District filed an answer and a cross-complaint against Cross-Defendants Seres and Does 1-25 for apportionment of fault and indemnification.
On September 5, 2024, the Court dismissed the County without prejudice at Plaintiffs’ request.
On September 11, 2024, on the Court’s own motion, the Court vacated the jury trial scheduled for September 25, 2024. The Court set a trial setting conference for December 17, 2024. The Court later continued the trial setting conference to April 2, 2025.
On September 18, 2024, Seres filed an answer to the District’s cross-complaint.
On October 24, 2024, Seres filed a cross-complaint against Cross-Defendants District, Benson, and Roes 1-10 for indemnity, apportionment of fault, comparative fault, and declaratory relief.
No trial date is currently scheduled.
B. This motion
On November 26, 2024, the District filed a motion to strike Seres’s cross-complaint. The motion was set for hearing on January 14, 2025. On December 24, 2024, Seres filed an opposition. On January 7, 2025, the District filed a reply. The Court continued the hearing to March 3, 2025.
PARTIES’ REQUESTS
The District asks the Court to strike Seres’s cross-complaint.
Seres asks the Court to deny the motion.
LEGAL STANDARD
A. Motion to strike
“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof . . . .” (Code Civ. Proc., § 435, subd. (b)(1).) The Court may “[s]trike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., § 436, subd. (a).) “The grounds for a motion to strike shall appear on the face of the challenged pleading of from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).)
“In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255 (Clauson).) “In ruling on a motion to strike, courts do not read allegations in isolation.” (Ibid.)
B. Cross-complaint
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 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
The District asks the Court to strike Seres’s cross-complaint because Seres did not comply with Code of Civil Procedure section 428.50 in filing it. Seres filed the cross-complaint after filing her answer to the District's cross-complaint, after the Court set the case for trial, and without leave of Court. (See Code Civ. Proc., § 428.50; L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2024) ¶ 6:555, p. 6-172 (Cal. Practice Guide) [leave of court is required to file a cross-complaint “once a trial date has been set, even if that trial date is later vacated” (citing Loney v. Superior Court (Moneta) (1984) 160 Cal.App.3d 719, 723)].)
Seres
admits that, “technically speaking, leave of Court should have been obtained
before the Seres’ Cross-Complaint was filed as LAUSD was the party who filed a
cross-complaint against Seres.”
(Opposition p. 5.) Nonetheless,
Seres argues that (1) she could not file her cross-complaint until she received
notification that the District had rejected her claim for damages under the
California Tort Claims Act and (2) she did not receive this notice until after
the deadline to file her answer to the District’s cross-complaint. Seres does not state, however, whether she
asked the District for an extension of time to file her answer. In any event, Seres cites no authority holding
that the need to satisfy the claim presentation requirement excuses compliance
with Code of Civil Procedure section 428.50.
In addition, Seres was on notice of her equitable indemnity claim against the District before the District filed its cross-complaint. Plaintiff's complaint alleged that both Seres and the District negligently caused Plaintiff's injuries and damages. "[T]he date upon which a cause of action for equitable indemnity accrues shall be date upon which a defendant is served with the complaint giving rise to the defendant's claim for equitable indemnity or partial indemnity against the public entity." (Gov. Code, § 901; see Centex Homes v. Superior Court (2013) 214 Cal.App.4th 1090, 1101 ["the plain language of section 901 provides that a defendant's equitable indemnity cause of action against a public entity accrues upon the service of the complaint that contains the cause of action for which indemnity is sought"].)
Seres also asks the Court for leave to file the cross-complaint. “In the absence of stipulation, the defendant seeking leave to file a cross-complaint must file a noticed motion.” (Cal. Practice Guide, supra, ¶ 6:560, p. 173.) Seres has not filed a motion for leave to file a cross-complaint and the Court declines to consider Seres’s request raised in opposition to the District’s motion to strike. The Court also denies Seres’s request to specially set a hearing on a future motion for leave to file a cross-complaint.
The Court grants the District’s motion and strikes Seres’s cross-complaint.
CONCLUSION
The Court GRANTS Defendant Los Angeles Unified School District’s motion to strike the cross-complaint filed by Defendant, Cross-Defendant, and Cross-Complainant Elizabeth Zion Seres on October 24, 2024.
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.