Judge: Lisa R. Jaskol, Case: 23STCV05877, Date: 2024-04-10 Tentative Ruling
Case Number: 23STCV05877 Hearing Date: April 10, 2024 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
On March 16, 2023, Plaintiff a Minor, by and through Or Amsalam, guardian ad litem, filed this action against Defendants Haim Mazar and Does 1-50 for strict liability (Civ. Code, § 3342), negligence, and premises liability.
On July 25, 2023, Plaintiff L.A. (“Plaintiff”), by and through her guardian ad litem, Or Amsalam, filed a first amended complaint against Defendants Haim Mazar (“Haim Mazar”), Katya Mazar (“Katya Mazar”), and Does 1-10 for strict liability (Civ. Code, § 3342), negligence, and premises liability.
On August 8, 2023, the Court granted Or Amsalam’s application to serve as Plaintiff’s guardian ad litem.
On September 12, 2023, Haim Mazar filed a general denial. On November 21, 2023, Katya Mazar filed a general denial.
On January 12, 2024, Haim Mazar and Katya Mazar (“Defendants”) filed a motion for leave to file a cross-complaint to be heard on April 10, 2024. On March 27, 2024, Plaintiff filed an opposition. On April 2, 2024, Defendants filed a reply.
Trial is currently scheduled for September 12, 2024.
PARTIES’ REQUESTS
Defendants request leave to file a cross-complaint against Cross-Defendants Orly Amsalam, Or Amsalam, and Roes 1-20 for equitable indemnity and apportionment of fault.
Plaintiff asks the Court to deny the motion.
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 first amended complaint
The first amended complaint alleges that on June 28, 2020, while Plaintiff and her mother were visiting Defendants’ home, Defendants’ dog attacked Plaintiff and bit and clawed at Plaintiff’s face and upper lip, injuring her.
B. Defendants’ motion for leave to file cross-complaint
Defendants argue that the incident occurred when Plaintiff’s parents (father Or Ansalam and mother Orly Amsalam) left Plaintiff, then 16 months old, alone in Defendants’ home with Defendants’ dog. While unsupervised, Defendants contend, Plaintiff fell off a table onto the sleeping dog. According to Defendants, Plaintiff’s parents are therefore partly or entirely responsible for Plaintiff’s injuries.
Plaintiff opposes the motion, arguing (1) Defendants have not explained their delay in seeking leave to file a cross-complaint, (2) Defendants are not acting in good faith, and (3) granting leave to file a cross-complaint will unduly prejudice Plaintiff, waste judicial resources, and violate important public policy principles.
C. Ruling
Despite Defendants’ delay in seeking leave to file a cross-complaint, and having considered Plaintiff’s arguments, the Court concludes that Plaintiff has not shown Defendants are acting in bad faith. (See Code Civ. Proc., § 426.50.) Liberally construing the statute to avoid forfeiture of a cause of action (see ibid.), the Court grants the motion in the interest of justice.
CONCLUSION
The Court GRANTS the motion of Defendants Haim Mazar and Katya Mazar for leave to file a cross-complaint. The Court orders Defendants Haim Mazar and Katya Mazar to file and serve the cross-complaint within 30 days of the hearing on this motion.
Moving parties are ordered to give notice of this ruling.
Moving parties are ordered to file the proof of service of this ruling with the Court within five days.