Judge: Mark E. Windham, Case: 21STLC08264, Date: 2023-01-11 Tentative Ruling

Case Number: 21STLC08264    Hearing Date: January 11, 2023    Dept: 26

Tovar v. Marquez, et al.



MOTION FOR LEAVE TO FILE CROSS-COMPLAINT

(CCP §§ 426.50, 428.50)

TENTATIVE RULING:

Defendant Jaime Edgard Marquez’s Motion for Leave to File Cross-Complaint is GRANTED.

CROSS-COMPLAINT TO BE FILED AND SERVED WITHIN 20 DAYS OF THIS ORDER.

ANALYSIS:

On August 19, 2021, Plaintiff Crystal Ayala Tovar (“Plaintiff”) filed the instant action for motor vehicle negligence against Defendant Jaime Edgar Marquez (“Defendant”). Defendant filed an Answer on May 5, 2022. 

Defendant filed the instant Motion for Leave to File Cross-Complaint on December 9, 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 failed to realize that a Cross-Complaint was appropriate against Bellagio Express Car Wash, the location where the subject motor vehicle accident occurred. (Motion, Spivey Decl., ¶¶3-4.) Upon realizing the mistake, defense counsel prepared the instant Motion. (Id. at ¶4.) The proposed Cross-Complaint alleges indemnification and contribution against Bellagio Express Car Wash and Roes 1-20, inclusive. A copy of the proposed Cross-Complaint is attached to the Motion. (Id. at Exh. A.) This evidence and the lack of any opposition demonstrates that Defendant’s request to file the Cross-Complaint is not made in bad faith and leave to file it is appropriate. However, the Court notes a typo in the proposed Cross-Complaint at page 1, lines 23-24, which should be corrected. (Id. at Exh. A, p. 1:23-24.)

Conclusion

Defendant Jaime Edgard Marquez’s Motion for Leave to File Cross-Complaint is GRANTED.

CROSS-COMPLAINT TO BE FILED AND SERVED WITHIN 20 DAYS OF THIS ORDER.

Moving party to give notice.