Judge: Lisa R. Jaskol, Case: 23STCV03489, Date: 2024-03-28 Tentative Ruling

Case Number: 23STCV03489    Hearing Date: March 28, 2024    Dept: 28

Having considered the moving papers, the Court rules as follows. 

BACKGROUND 

On February 15, 2023, Plaintiff Sebastian Reyes (“Plaintiff”), a minor by and through his guardian ad litem Daysi Villegas, filed this action against Defendants Ramona G. Parres a.k.a. Ramona Gutierrez, Miguel M. Parres, also known as Miguel Enrique Parres (deceased), Miguel Enrique Parres, Jr., in his capacity as trustee of the Miguel and Ramona Parres Living Trust dated May 16, 2014, and any amendments thereto, Does 20-60, in their capacities as beneficiaries of the Miguel and Ramona Parres Living Trust dated May 16, 2014, and any amendments thereto, Estate of Miguel M. Parres, also known as Miguel Enrique Parres, deceased, Does 61-80 as executors, administrators, personal representatives, and/or successors in interest of Estate of Miguel M. Parres, also known as Miguel Enrique Parres, deceased, EGL Properties Incorporated, and Does 1-100 for negligence. 

On June 2, 2023, Defendants Ramona G. Parres aka Ramona Gutierrez, Miguel Enrique Parres, Jr. in his capacity as trustee of the Miguel and Ramona Parres Living Trust dated May 16, 2014 and any amendments thereto, the Estate of Miguel M. Parres, also known as Miguel Enrique Parres, deceased (erroneously sued as Miguel M. Parres aka Miguel Enrique Parres, deceased), and EGL Properties, Inc. (collectively, “Defendants”), filed an answer.

Defendants also filed a cross-complaint against Cross-Defendants Veronica Badillo and Roes 1-25 for equitable indemnity, implied indemnity, comparative indemnity, contribution, and declaratory relief.  On January 11, 2024, Defendants amended the cross-complaint to include Cross-Defendant American Reliable Windows & Doors (“Reliable”) as Roe 1. 

On December 29, 2023, Defendant EGL Properties, Incorporated (“EGL”) filed a motion for leave to file a cross-complaint against Reliable and Zoes 1-20 to be heard on March 28, 2024. 

Trial is currently scheduled for August 14, 2024. 

PARTY’S REQUEST 

EGL requests leave to file a cross-complaint against Cross-Defendants Reliable and Zoes 1-20 for indemnity, contribution, apportionment of fault, declaratory relief, and tort of another. 

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 Civ. Proc., § 426.50.) 

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 

A.   The complaint 

The complaint alleges that on or about April 1, 2021, Plaintiff fell out of a second story window of a residential building at 1411 Courtland Avenue in Los Angeles (the “premises”) which Defendants owned, constructed, controlled, serviced, repaired, designed, managed, operated and/or maintained.  Plaintiff allegedly suffered serious injuries. 

B.    EGL’s motion for leave to file cross-complaint against Reliable and Zoes 1-20   

EGL’s proposed cross-complainant alleges that Reliable and Zoes 1-20 are responsible for Plaintiff’s claimed injuries because, to the extent the window through which Plaintiff fell lacked fall prevention mechanisms, Reliable and Zoes 1-20 created that condition. 

C.      Ruling 

It is unclear why EGL seeks to file a cross-complaint in addition to the cross-complaint that Defendants (including EGL) have already filed, in which Reliable is now a Cross-Defendant.  After EGL filed its motion, Defendants amended their cross-complaint to include Reliable as a Cross-Defendant, but EGL has not taken its motion off calendar.

The Court continues the hearing and orders EGL to file a supplemental brief explaining (1) if it continues to believe the Court should grant its motion and (2) if so, why, in light of Reliable's inclusion as a Cross-Defendant in Defendants' cross-complaint. 

CONCLUSION 

The Court CONTINUES the hearing on Defendant EGL Properties, Incorporated's motion for leave to file a cross-complaint to a date to be provided at the March 28, 2024 hearing.

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.