Judge Lynne M. Hobbs, Case Number: 20STCV24301, Date: 2023-12-29 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 20STCV24301, Date: 2023-12-29 Tentative Ruling

Case Number: 20STCV24301 Hearing Date: December 29, 2023 Dept: 30

DOUGLAS DEL CID vs PARK SIERRA APARTMENT HOMES, et al.

TENTATIVE

Defendant’s unopposed motion for leave to file a cross-complaint is GRANTED. Defendant is ordered to file and serve the proposed cross-complaint attached as Exhibit A to the proposed order within 10 days of the hearing on this motion.

Legal Standard

CCP § 428.10 provides that a party against whom a cause of action has been asserted may file a cross-complaint setting forth: “(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.” (CCP § 428.10(b).) A party shall obtain leave of court to file a cross-complaint if it is not concurrently filed with the answer or at any time before the court sets a trial date. Leave may be granted in the interest of justice at any time during the course of the action. (CCP § 428.10(c).)

If a cross-complaint is compulsory, leave must be granted as long as the cross-complainant is acting in good faith, so as to avoid forfeiture of the causes of action. (C.C.P. §426.50; See Silver Organizations, Ltd. v. Frank (1990) 217 Cal.App.3d 94, 101 (concluding that the late filing of the motion to file a compulsory cross-complaint absent some evidence of bad faith is insufficient evidence to support denial of the motion).) To be considered a compulsory cross-complaint, the related cause of action must have existed at the time defendant served its answer to the complaint. (Weil & Brown, California Practice Guide (2008), Civil Procedure Before Trial §6:516; See also Crocker Nat’l Bank v. Emerald (1990) 221 Cal.App.3d 852, 864.) If the cross-complaint is not compulsory, but rather is permissive, the Court has sole discretion whether to grant or deny leave. (Id.)

“A party who fails to plead a cause of action subject to the requirements of this article, whether through over-sight, 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.” (CCP § 426.50.) The Court shall grant such a motion if the moving party acted in good faith. (CCP § 426.50.)

The determination that the moving party acted in bad faith must be supported by substantial evidence. (Foot's Transfer & Storage Co. v. Superior Court (1980) 114 Cal.App.3d 897 (evidence insufficient to support trial court's denial of motion to file cross-complaint notwithstanding that defendant waited 23 months after service of complaint and 16 months after filing answer before asserting right to file cross-complaint, where nothing in record suggested that defendant was unusually reprehensible with regard to delay, plaintiff waited for two years to file action, and plaintiff’s counsel equivocated concerning stipulation allowing the filing of cross-complaint at same time counsel conducted discovery concerning the claim defendant sought to assert in the cross-complaint).)

At minimum, a very strong showing of bad faith on the part of the defendant is required before a court will be justified in denial of leave to file or amend a cross-complaint. (Sidney v. Superior Court (1988) 198 Cal.App.3d at 710, 718.) The burden of showing bad faith rests on the party opposing the allowance of the cross-complaint. (Silver Organizations Ltd. v. Frank (1990) 217 Cal.App.3d 94.)

A determination that the petitioner acted in bad faith may be premised on “substantial injustice or prejudice” to the opposing party. (Foot's Transfer & Storage Co. v. Superior Court, 114 Cal.App.3d at 903; See also Gherman v. Colburn (1977) 72 Cal.App.3d 544, 558-59 (stating that leave was properly denied when the defendant’s motion “was merely a tactical strategic maneuver to deprive plaintiffs of a right to a jury trial”).)

Discussion

Defendant moves to file a cross-complaint against Defendant Diamond Construction and Waterproofing, Inc., who performed the work on the staircase at issue. While Diamond was added by Plaintiff as a Doe defendant on January 9, 2023, Diamond has failed to respond to the complaint, and has not been defaulted. Presumably, Defendants believed that Diamond would appear in the case and they could file a cross-complaint upon Diamond's appearance in the case. However, that did not happen. Further, while Defendants have known that Diamond performed the work, it was not until Defendants had had an opportunity to conduct discovery and learn the facts, and when new counsel reviewed the entire case file, including all discovery, that Defendants determined the responsible party to be Diamond. Additionally, current counsel for Defendants was recently substituted into the case on December 6, 2023. Upon receipt of the file, current counsel determined that it must file a cross-complaint against Diamond in order to protect Defendants' interests in the case.

The Court finds that the cross-complaint is compulsory because it arises out of the same occurrence, namely, the slip and fall at issue in this case. “Cross-complaints for comparative equitable indemnity would appear virtually always transactionally related to the main action.” (Time for Living, Inc. v. Guy Hatfield Homes (1991) 230 Cal.App.3d 30, 38.) Thus, there must be substantial evidence that Defendant acted in bad faith to justify a denial of the motion to file a cross-complaint.

No party has opposed this motion, and thus have not produced any argument or evidence of bad faith. Therefore, the motion is granted.