Judge Martha K. Gooding, Case 2020-01156221 2022-11-28 Tentative Ruling

Judge: Martha K. Gooding, Case: 2020-01156221, Date: 2022-11-28 Tentative Ruling

1.Motion for Leave to File Cross Complaint
2. Motion to Compel Physical/Mental Examination
3. Joinder

The Court DENIES the Motion by Defendant Santa Ana Unified School District (“SAUSD”) for leave to file a Cross-Complaint against former cross-defendant Kenji Kina (the “Motion”).

The Procedural Background

Some procedural background is necessary to understand the context in which the Motion was made and the basis for the Court’s denial of the Motion.

Plaintiff is a minor student suing defendant SAUSD for an alleged sexual assault that occurred on or about 2/14/19 at SAUSD’s Middle College High School (“MCHS”), which is located on the campus of Santa Ana College (“SAC”). One of the college students, Kenji Kina (“Kina”), allegedly sexually assaulted Plaintiff.

Plaintiff originally named both SAUSD and the Rancho Santiago Community College District (“RSCCD”) as defendants. On 10/29/20, RSCCD filed a Cross-Complaint against Plaintiff’s alleged attacker, Kenji Kina. (ROA 18.) Kina answered RSCCD’s Cross-Complaint on 12/29/20. (ROA 26.) Notably, although SAUSD was well aware of Kina’s identity and his alleged role in the facts underlying the Complaint – and although, at the time RSCCD filed its cross-complaint, both RSCCD and SAUSD were represented by the same counsel – SAUSD did not file a cross-complaint against Kenji Kina.

Eventually, SAUSD and RSCCD each moved for summary judgment/summary adjudication on Plaintiff’s Complaint. On 10/13/22, SAUSD’s motion was denied, but RSCCD’s motion for summary judgment was granted. [ROA #449.] The next day, 10/14/22, RSCCD dismissed its Cross Complaint against Kina without prejudice. [ROA #462.]

Eleven days later, on 10/25/22, SAUSD filed the pending motion for leave to file a Cross-Complaint against Kina to assert claims for indemnity, contribution, and proration of damages. [Bauermeister Decl. [ROA #481], Ex. B.] The proposed Cross-Complaint appears to be the same as – or very similar to – RSCCD’s now-dismissed Cross-Complaint against Kina.

The Relevant Legal Standards

The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. Code Civ. Proc. § 473(a)(1). The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. Id. § 473(a)(1). Additionally, any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order. Id. § 576.

A motion to amend a pleading before trial must: (1) include a copy of the proposed amendment or amended pleading; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any, by page, paragraph, and line number, the additional allegations are located. CRC 3.1324(a). A separate declaration must accompany the motion and must specify: (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made earlier. CRC 3.1324(b).

Courts generally allow great liberality, at all stages of the proceeding, in permitting the amendment of pleadings in order to resolve cases on their merits. IMO Development Corp. v. Dow Corning (1982) 135 Cal. App.3d 451, 461.

This liberality only applies, however, so long as there is no prejudice to the opposing party. Higgins v. Del Faro (1981) 123 Cal. App. 3d 558, 564. Denial of leave to amend is appropriate where inexcusable delay and probable prejudice to the opposing party are present. This may happen, for example, where a proposed amendment opens up an entirely new field of inquiry without any satisfactory explanation as to why the major change in point of attack had not been made long before trial. Estate of Murphy v. Gulf Ins. Co. (1978) 82 Cal. App. 3d 304, 311. See Fisher v. Larsen (1982) 138 Cal. App. 3d 627, 649 (where plaintiff knew for over five months that certain claims had not been properly pleaded, but took no action to amend until after a summary judgment had been granted against it, it was not an abuse of discretion to deny leave to amend the complaint).

The rules regarding filing of cross-complaints are also relevant to the Motion.

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. Code Civ. Proc. section 428.50(a). Any other cross-complaint may be filed at any time before the court has set the first trial date. Code Civ. Proc. section 428.50(b); Weil & Brown, Cal. Prac. Guide, Civ. Proc. before Trial section 6:553.

A party shall obtain leave of court to file any cross-complaint except one filed within the time specified in subdivision (a) or (b). Code Civ. Proc. section 428.50(c). There is a liberal policy regarding the filing of cross-complaints. Weil & Brown, Cal. Prac. Guide, Civ. Proc. before Trial (Rutter 2010) § 6:557. If the proposed cross-complaint is permissive, leave of court may be granted “in the interests of justice” at any time during the course of the action. Code Civ. Proc. § 428.50(c).

If the proposed cross-complaint is compulsory, leave must be granted so long as defendant is acting in good faith. Code Civ. Proc. § 426.50; Weil & Brown, Cal. Prac. Guide, Civ. Proc. before Trial (Rutter 2010) section 6:555. A cross-complaint can only be compulsory if it is against the plaintiff or another defendant already asserting cross-claims against the party seeking to file a cross-complaint. Cal. Prac. Guide Civ. Pro. Before Trial Ch. 6-D §§ 6:511, 6:524.

Analysis

The Court finds that Defendant has complied with the requirements of CRC 3.1324. The proposed Cross-Complaint is submitted as Exhibit B to counsel’s supporting declaration.

However, the Court concludes that, in the exercise of its discretion and in the interest of justice, the Motion should be denied. Based on the facts here, Defendant SAUSD inexcusably delayed asserting its claims against Kina, and prejudice to Plaintiff would result from granting the Motion to bring Kina back into the case at this late date.

This case was filed more than two years ago, on August 20, 2020. Trial is set to begin on January 17, 2023 – less than two months hence. Trial has already been continued three times. (The prior trial dates were April 11, 2022, August 22, 2022, and November 21, 2022.) If Kina were brought back into the case at this late date, a further continuance of trial would certainly be necessary. By the time Kina were served with the Cross-Complaint and filed a response to it, the case would be virtually on the eve of trial. It would hardly be fair to Kina to force him to prepare for trial in a matter of just a few weeks. Thus, trial would have to be continued yet again, which would result in prejudice Plaintiff.

Moreover, SAUSD provides no satisfactory explanation for its inordinate delay in asserting its claims against Kina. It certainly knew of Kina’s role in the alleged attack, and it knew its co-defendant, RSCCD, had asserted a cross-complaint against him. It also knew that only RSCCD was propounding discovery on Kina. SAUSC was obviously content with that state of affairs for a very long time. Had SAUSD wished to assert its own cross-complaint against Kina, it could – and should – have asserted it long, long ago.

Based on these facts, it appears SAUSD made a strategic decision not to assert a claim of its own against Kina. The fact that SAUSD evidently now regrets that tactical decision does not support or compel an order granting the Motion.

In addition, SAUSD’s proposed Cross-Complaint against Kenji Kina is not compulsory. Thus, denial of SAUSD’s eleventh-hour motion will not deprive SAUSD of the ability to pursue a remedy against Kina, should that become necessary or feasible. It is well established that a defendant may pursue a comparative equitable indemnity claim against other tortfeasors either (1) by filing a cross-complaint in the original tort action or (2) by filing a separate indemnity action after paying more than its proportionate share of the damages through the satisfaction of a judgment or through a payment in settlement. See, e.g., Sears, Roebuck & Co. v. International Harvester Co. (1978) 82 Cal.App.3d 492, 496; American Bankers Ins. Co. v. Avco–Lycoming Division (1979) 97 Cal.App.3d 732, 736.

A claim for indemnity may be brought in a separate action after settlement or judgment in the original action. Evangelatos v. Superior Court (1988) 44 Cal. 3d 1188.

Based on the Court’s findings of inexcusable delay on SAUSD’s part and prejudice to the opposing party, the Court concludes that the Motion should be – and is – denied.

Plaintiff is ordered to give notice.