Judge: Lynette Gridiron Winston, Case: 24PSCV00176, Date: 2024-08-13 Tentative Ruling

Case Number: 24PSCV00176    Hearing Date: August 13, 2024    Dept: 6

CASE NAME:  Iris Lu v. Charles Ching Hsien Chen, et al. 

Charles Ching Hsien Chen’s Motion for Leave to File Cross-Complaint 

TENTATIVE RULING 

The Court GRANTS Charles Ching Hsien Chen’s motion for leave to file cross-complaint. Chen must file and serve the proposed cross-complaint within 10 days of the Court’s order and file proof of service of same. 

             Chen is ordered to give notice of the Court’s ruling within five calendar days of this order. 

BACKGROUND 

This is a personal injury action. On January 17, 2024, plaintiff Iris Lu (Plaintiff) filed this action against defendants Charles Ching Hsien Chen (Chen), Morgan Garcia (Garcia), and Does 1 to 50, alleging one cause of action for motor vehicle. 

On June 4, 2024, Garcia filed a cross-complaint against Chen and Roes 1 to 10 for apportionment of negligence and indemnity. 

On May 23, 2024, Chen answered the complaint. On June 20, 2024, Chen moved for leave to file a cross-complaint. The motion is unopposed. 

LEGAL STANDARD

(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 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.)

The legislative mandate is clear. A policy of liberal construction of section 426.50 to avoid forfeiture of causes of action is imposed on the trial court. 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 Organizations Ltd. v. Frank (1990) 217 Cal.App.3d 94, 98–99.)

DISCUSSION 

Chen seeks leave to file a cross-complaint. Chen indicates that after having answered Plaintiff’s complaint, Garcia filed a cross-complaint for apportionment of negligence and indemnity against Chen. Chen indicates Chen’s counsel was not fully aware of the facts of this incident at the time of the filing of the answer, as liability is disputed, so Chen’s counsel inadvertently did not file a cross-complaint for indemnity and property damage at the same time of filing and serving Chen’s answer to the complaint. Chen also notes that Garcia’s cross-complaint was filed without leave of the Court. 

Chen contends to not have acted in bad faith attempting to file Chen’s cross-complaint, and that the interests of justice favor granting this motion to avoid forfeiture of Chen’s causes of action. Chen also contends that no prejudice will result to any party if the cross-complaint is filed given this case is in the early stages of litigation, whereas Chen would be greatly prejudiced if not permitted to file the cross-complaint. Chen also argues the Court has the power to grant relief from mistakes, inadvertence, surprise, or excusable neglect. Chen further indicates having attempted to obtain Plaintiff’s consent to file the proposed cross-complaint, but to no avail. 

The Court finds Chen’s motion to be well taken. This case is in the early stages of litigation and there is no evidence of Chen acting in bad faith here. (See Hemati Decl., ¶¶ 10-11; Code Civ. Proc., § 426.50; Silver Organizations Ltd. v. Frank, supra, 217 Cal.App.3d at pp. 98–99.) The Court accepts the representation from Chen’s counsel that the failure to file a cross-complaint contemporaneously with the answer was the result of inadvertence and oversight. (See Hemati Decl., ¶¶ 10-11.) Public policy also favors granting Chen leave to file the proposed cross-complaint and thereby avoid forfeiting Chen’s claims against Garcia. (Code Civ. Proc., § 426.50; Silver Organizations Ltd. v. Frank, supra, 217 Cal.App.3d at pp. 98–99.) The Court further notes the lack of opposition to this motion, which the Court construes as a tacit admission that Chen’s arguments are meritorious. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410; C. Opposing the Motion—and Rebutting the Opposition, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-C, ¶ 9:105.10; see also Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215 [“Contentions are waived when a party fails to support them with reasoned argument and citations to authority. [Citation.]”]) 

            As for Garcia having filed the cross-complaint on June 4, 2024, without previously seeking leave of the Court, the Court exercises its discretion and will allow it to remain on file. While Garcia was required to first seek leave of Court to file a cross-complaint given Garcia’s answer filed on May 17, 2024, (Answer (5/17/24); Code Civ. Proc., § 428.50, subd. (c)), requiring Garcia to file a separate motion for leave at this point would generate unnecessary motion practice, given the strong policy in favor of permitting leave to file cross-complaints and avoid forfeitures of causes of action, (Silver Organizations Ltd. v. Frank, supra, 217 Cal.App.3d at pp. 98–99). That being said, the Court admonishes Garcia to comply with the requirements of the Code of Civil Procedure going forward. 

Based on the foregoing, the Court GRANTS Chen’s motion. 

CONCLUSION 

The Court GRANTS Charles Ching Hsien Chen’s motion for leave to file cross-complaint. Chen must file and serve the proposed cross-complaint within 10 days of the Court’s order and file proof of service of same.