Judge Mark E. Windham, Case Number: 18STLC13458, Date: 2023-09-26 Tentative Ruling

If you desire to submit on the tentative ruling, you may do so by e-mailing Dept. 26 at the Spring Street Courthouse until the morning of the motion hearing.

The e-mail address is SSCdept26@lacourt.org

The heading on your e-mail should contain the case name, number, hearing date, and that you submit. The message should indicate your name, contact information, and the party you represent. Please note, the above e-mail address is to inform the court of your submission on the tentative ruling. All other inquiries will not receive a response.

If there are no appearances by either side and no submission on the Court's tentative ruling, the matter will be placed OFF CALENDAR.

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Gutierrez v. Perry, et al.

MOTION TO FILE SUPPLEMENTAL CROSS-COMPLAINT

(CCP § 464)

Cross-Complainant Raymond C. Perry aka Chris Perry’s Motion to File Supplemental Cross-Complaint is GRANTED

On November 2, 2018, Plaintiff Aguileo Gutierrez (“Cross-Defendant”) filed the instant action for breach of contract against Defendant Raymond C. Perry aka Chris Perry (“Cross-Complainant”). On April 4, 2019, Cross-Complainant filed a Cross-Complaint against Cross-Defendant.

The Court granted Cross-Defendant’s Motion to Deem Requests for Admission Admitted Against Cross-Complainant on November 7, 2019. However, the Court denied Cross-Defendant’s Motion for Terminating Sanctions on July 8, 2020. The matter came for trial on September 3, 2020 and the Court continued the trial date to July 8, 2021. Due to there being no judge available for trial on July 8, 2021, the trial date was again continued to November 16, 2021. (Minute Order, 07/08/21.)

On August 2, 2021, the Court denied Cross-Complainant’s Motion to Vacate the Order Deeming the Requests for Admission Admitted. (Minute Order, 08/02/21.) The trial was continued multiple times to May 23, 2022, at which time the parties represented a desire for settlement discussions. Following a mandatory settlement conference, which did not resolve the action, the trial date was again set and continued multiple times.

Cross-Complainant filed the instant Motion to File Supplemental Cross-Complaint on July 5, 2023. The trial date was again continued and is now set for September 28, 2023. No opposition to the Motion to File Supplemental Cross-Complaint has been filed to date.

Cross-Complainant moves to file a Supplemental Cross-Complaint pursuant to Code of Civil Procedure section 464, subdivision (a), which states in relevant part: “[t]he plaintiff and defendant, respectively, may be allowed, on motion, to make a supplemental complaint or answer, alleging facts material to the case occurring after the former complaint or answer.” (Code Civ. Proc., § 464, subd. (a).)

It is the general policy that courts should exercise liberality in permitting the filing of supplemental pleadings when the alleged “occurring-after” facts are pertinent to the case. (Code Civ. Proc., § 464; People ex rel. Dept. Pub. Wks. v. Douglas, 15 Cal.App.3d 814 [93 Cal.Rptr. 644]; Louie Queriolo Trucking, Inc. v. Superior Court, 252 Cal.App.2d 194, 197—198 [60 Cal.Rptr. 389].) Nonetheless, the motion to file a supplemental pleading is addressed to the sound legal discretion of the court, and its ruling will not be disturbed on appeal in the absence of a showing of a manifest abuse of that discretion.

Cross-Complainant seeks to file a Supplemental Cross-Complaint alleging that he incurred additional damages due to Cross-Defendant’s alleged wrongdoing. Specifically, during the heavy rains in Los Angeles in the winter of 2022-2023, the improper roof construction performed by Cross-Defendant led to hundreds of thousands of additional dollars of damage to Cross-Complainant’s home and personal property. (Motion, p. 3:17-21.) The Motion, however, is not supported by any evidence to support these allegations or even when Cross-Complainant became aware of the purported damages. No supporting declaration nor documentary evidence attests to these facts, which presumably began last winter. (See Motion, Cohon Decl.). Nevertheless, at the hearing on this motion, Plaintiff accedes to its thrust for reasons of judicial economy.

Cross-Complainant Raymond C. Perry aka Chris Perry’s Motion to File Supplemental Cross-Complaint is GRANTED.