Judge: Malcolm Mackey, Case: 22STCV19813, Date: 2023-08-15 Tentative Ruling

Case Number: 22STCV19813    Hearing Date: August 15, 2023    Dept: 55

MSW POMONA, LLC v. POMONA UNIFIED SCHOOL DISTRICT,  22STCV19813

Hearing Date:  8/15/23,  Dept. 55.

#5:   MOTION FOR LEAVE TO FILE A CROSS-COMPLAINT.

Notice:  Okay

Opposition

MP:  Defendant

RP:  Plaintiffs

Summary

On 6/17/22, Plaintiff filed a Complaint alleging that defendants violated the express terms of  easements, by locking gates, and otherwise blocking plaintiffs’ customers at a swap meet, and plaintiffs’ rights of ingress, egress, and parking in Areas Cl, C2, Dl, D2, 13 and F

The causes of action are:

(1) BREACH OF CONTRACTCOMPLAINT - SPECIFIC PERFORMANCE

(2) BREACH OF IMPLIED COVENANT – SPECIFIC PERFORMANCE;

(3) DECLARATORY RELIEF.

MP Positions

Moving party requests an order granting leave to file a compulsory cross-complaint for injunctive relief with respect to plaintiffs’ gate blocking Defendant’s property, on grounds including the following:

·         After filing this case, Plaintiff installed a gate blocking Defendant’s access to its property.

·         The area belongs to Defendant, based on a deed. (Sims Decl., Exh. A.)

·         Plaintiff opined that Defendant must be reading the documents incorrectly, and refused to remove the gate obstructing Defendant’s property.

RP Positions

Opposing parties advocate denying, for reasons including the following:

·         The motion is nothing more than legal gamesmanship to delay this action, which was filed over 14 months ago, and is scheduled for trial in February.

·         Plaintiffs received Defendant's agreement on the installation of the gate, and provided a key to Defendant to open it, after Defendant represented it did not own the subject property and would not clean it up.

·         Defendant admits that each of the three causes of actions were "in existence" at the time it filed its Answer, which means it intentionally did not timely file a cross-complaint when it had the right to do so without leave.

Tentative Ruling

The motion is granted.

Moving party may serve and file the proposed Cross-Complaint, as a separate document, within 10 days.

The Court finds no bad faith, including because moving party’s enabled access through the disputed gate by key, still leaves issues regarding real property ownership in relation to a newer gate, which are currently in dispute, and suitable for a cross-complaint.

Leave to file compulsory cross-complaints must be granted where moving parties acted in good faith.  CCP §426.50; Silver Organizations, Ltd. v. Frank (1990) 217 Cal.App.3d 94, 98-99.  In reviewing a denial of leave to file a compulsory cross-complaint, appellate courts review the entire record for any substantial evidence of bad faith, defined as, “dishonest purpose, moral obliquity, sinister motive, furtive design or ill will.”  Silver Organizations Ltd. v. Frank (1990) 217 Cal.App.3d 94, 100.