Judge: Lisa R. Jaskol, Case: 23STCV14004, Date: 2023-09-29 Tentative Ruling

Case Number: 23STCV14004    Hearing Date: September 29, 2023    Dept: 28

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

BACKGROUND 

On June 16, 2023, Plaintiffs Donald James (“James”) and Kay Marshall (“Marshall”) filed this action against Defendants Silvia E. Castillo Islas (“Castillo”) and Does 1 to 10 for motor vehicle tort and general negligence. 

On July 20, 2023, Castillo filed an answer. 

On August 25, 2023, Castillo filed a motion for leave to file a cross-complaint to be heard on September 29, 2023. On September 18, 2023, James and Marshall filed an opposition. 

Trial is currently scheduled for December 13, 2024. 

PARTIES’ REQUESTS 

Castillo requests leave to file a cross-complaint against James and Marshall for apportionment of negligence and indemnity. 

James and Marshall request that the Court deny the motion. 

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.) 

DISCUSSION 

A.   James’ and Marshall’s complaint against Castillo for motor vehicle tort and general negligence 

The complaint alleges that on June 18, 2021, at Western Avenue and 83rd Street in Los Angeles, Castillo “negligently operated their vehicle causing their vehicle to collide into [James’ and Marshall’s] vehicle, resulting in personal injury, property damage, & other damages to [James and Marshall].” 

B.   Castillo’s proposed cross-complaint against James and Marshall for apportionment of negligence and indemnity 

Castillo’s proposed cross-complainant alleges that her vehicle “was being driven and operated on or about the time, place and date set forth in the complaint of plaintiffs Donald James and Kay Marshall; at said time and place [James and Marshall] . . . so recklessly, carelessly and negligently owned, maintained, operated and controlled their said vehicle so as to cause it to collide with [Castillo’s] vehicle.” 

Castillo alleges that, if she is found liable to James and Marshall, she is entitled to an apportionment of fault based on the relative proportion of fault or negligence of James and Marshall. 

C.   The Court grants the motion for leave to file the cross-complaint 

In support of Castillo’s motion for leave to file the proposed cross-complaint, her counsel submitted a declaration stating that, when he filed Castillo’s answer, he “[knew that] . . . Donald James was the driver of plaintiff’s vehicle, [but] [he] inadvertently and mistakenly failed to file the Cross-Complaint against Donald James.”  Counsel states: “The failure to file a cross-complaint for contribution, indemnity, and declaratory relief on [Castillo's] behalf against Donald James was solely the result of my oversight, inadvertence, mistake and/or neglect. It was not done with the intent to mislead or otherwise deceive Donald James.” 

In opposition, James and Marshall argue Castillo should not be given leave to file a cross-complaint because her insurer and counsel have known the facts giving rise to the cross-complaint since at least July 22, 2021.  James and Marshall also argue they “may” be prejudiced if Castillo files the cross-complaint. 

The Court finds that Castillo and her counsel acted in good faith in failing to file the cross-complaint when they filed Castillo’s complaint and that the failure to file the cross-complaint was the result of oversight, inadvertence, mistake, or neglect.  James and Marshall have not shown they will suffer unfair prejudice if Castillo files the cross-complaint. 

The Court grants the motion. 

CONCLUSION 

The Court GRANTS Defendant Silvia E. Castillo Islas’s motion for leave to file a cross-complaint.  Defendant 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.