Judge: Lisa R. Jaskol, Case: 23STCV01939, Date: 2023-12-06 Tentative Ruling
Case Number: 23STCV01939 Hearing Date: December 6, 2023 Dept: 28
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On January 30, 2023, Plaintiff Maria Del Carmen Gonzalez (“Plaintiff”) filed this action against Defendants City of Los Angeles (“City”), County of Los Angeles (“County”), Los Angeles Department of Water and Power (“Department”), Broadway Jewelry Mart, LLC (“Broadway”), and Does 1-100 for (1) creation of, failure to warn of, and/or negligent failure to correct dangerous condition of public property and (2) premises liability and negligence.
On May 8, 2023, the City and the Department filed an answer and a cross-complaint against Cross-Defendants Roes 1-10 for indemnification, apportionment of fault, and declaratory relief.
On May 17, 2023, Broadway filed an answer to Plaintiff’s complaint.
On July 24, 2023, the County filed an answer and a cross-complaint against Cross-Defendants Broadway and Moes 1-20 for negligence, comparative indemnity, declaratory relief, equitable apportionment of fault, and contribution. On October 11, 2023, the Court dismissed the County without prejudice at Plaintiff’s request. On October 20, 2023, the Court dismissed the County’s cross-complaint with prejudice at the County’s request.
On August 23, 2023, Broadway filed a motion for leave to file a cross-complaint, to be heard on December 6, 2023. No party has filed an opposition.
Trial is currently scheduled for July 29, 2024.
PARTY’S REQUEST
Broadway requests leave to file a cross-complaint against the City, the County, and Zoes 1-10 for equitable indemnity, contribution, 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 complaint, Plaintiff alleges that she slipped and fell on a sidewalk which Defendants owned, controlled, or possessed. The sidewalk allegedly was not level, it had a hole, and it had a jagged and uneven surface which created a risk of tripping and falling. The complaint alleges that Defendants negligently created and failed to correct or warn about this dangerous condition.
Broadway filed an answer to Plaintiff’s complaint but needed to comply with the Government Claims Act notice requirements before filing a cross-complaint against the City. On July 6, 2023, the City denied Broadway’s claim. Broadway then had six months to file a cross-complaint against the City. Broadway’s cross-complaint is based on the same alleged facts that support Plaintiff’s claims against Defendants.
Broadway asserts that it is entitled to file a cross-complaint against the County because the County filed a cross-complaint against Broadway. Broadway argues that, if and when the County serves its cross-complaint on Broadway, Broadway is entitled to file a cross-complaint against the County when Broadway answers the County’s cross-complaint. However, the Court dismissed the County from Plaintiff’s complaint and dismissed the County’s cross-complaint after Broadway filed its motion.
The
Court finds that Broadway has acted in good faith. The Court grants Broadway leave to file a
cross-complaint against the City and Zoes 1-10 in the interest of justice.
CONCLUSION
The
Court GRANTS IN PART Defendant Broadway Jewelry Mart, LLC’s motion for leave to
file a cross-complaint. Defendant
Broadway Jewelry Mart, LLC is granted leave to file a cross-complaint against the
City of Los Angeles and Zoes 1-10. Defendant
Broadway Jewelry Mart, LLC and is ordered to file and serve the cross-complaint
within 30 days of the hearing on this motion.
In all other respects, the Court DENIES the 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.