Judge: Mark E. Windham, Case: 21STLC05871, Date: 2023-01-25 Tentative Ruling

Case Number: 21STLC05871    Hearing Date: January 25, 2023    Dept: 26

Mancia v. Abnoosian, et al.

MOTION FOR LEAVE TO FILE CROSS-COMPLAINT

(CCP §§ 426.50, 428.50)

TENTATIVE RULING:

Defendant Aida Abnoosian’s Motion for Leave to File Cross-Complaint is CONTINUED TO MARCH 22, 2023 AT 10:00 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. DEFENDANT IS TO FILE A SUPPLEMENTAL DECLARATION EXPLAINING AND/OR CORRECTING THE DISCREPANCIES NOTED HEREIN. FAILURE TO DO SO MAY RESULT IN THE MOTION BEEN DENIED.

ANALYSIS:

On August 10, 2021, Plaintiff Maria Elena Mancia (“Plaintiff”) filed the instant action for motor vehicle negligence against Defendant Aida Abnoosian (“Defendant”). Defendant filed an Answer on January 18, 2022. 

Defendant filed the instant Motion for Leave to File Cross-Complaint on September 20, 2022. No opposition has been filed to date.

Discussion

Code of Civil Procedure section 428.50 provides:

“(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.) Furthermore, “[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, emphasis added.)

The Court of Appeals has explained: “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.) “‘‘Bad faith,’ is defined as ‘[t]he opposite of ‘good faith,’ generally implying or involving actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake . . . , but by some interested or sinister motive[,] . . . not simply bad judgment or negligence, but rather . . . the conscious doing of a wrong because of dishonest purpose or moral obliquity; . . . it contemplates a state of mind affirmatively operating with furtive design or ill will.  [Citation.]’  [Citations.]’  [Citation.]” (Id. at 100.)

Defendant’s Motion is brought on the grounds that defense counsel inadvertently failed to file a cross-complaint at the time the Answer was filed. (Motion, Sohovich Decl., ¶¶3-6.) Upon realizing the mistake, defense counsel prepared the instant Motion, seeking leave to file a cross-complaint against Jorge Mancia for implied indemnification and contributory negligence. (Motion, p. 3:9-10 and Sohovich Decl., ¶¶4-5.) The proposed Cross-Complaint, however, is alleged against Plaintiff Maria Elena Mancia for indemnity contribution. (Motion, Sohovich Decl., Exh. A.) It does not appear, therefore, that Defendant or defense counsel clearly understands the factual basis of the cross-claims that they intend to bring, nor against whom the claims should be brought.

Conclusion

Defendant Aida Abnoosian’s Motion for Leave to File Cross-Complaint is CONTINUED TO MARCH 22, 2023 AT 10:00 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. DEFENDANT IS TO FILE A SUPPLEMENTAL DECLARATION EXPLAINING AND/OR CORRECTING THE DISCREPANCIES NOTED HEREIN. FAILURE TO DO SO MAY RESULT IN THE MOTION BEEN DENIED.

Moving party to give notice.