Judge: Maurice A. Leiter, Case: 21STCV10395, Date: 2022-08-25 Tentative Ruling

Case Number: 21STCV10395    Hearing Date: August 25, 2022    Dept: 54

Hearing Date: August 25, 2022

Department 54, Judge Maurice A. Leiter

Motion for Leave to File Cross-Complaint

Moving Party: Defendant Sherry Mehdian

Responding Party: Plaintiff Wilfred Uy

T/R:    DEFENDANT’S MOTION FOR LEAVE TO FILE A CROSS-COMPLAINT IS GRANTED.

            DEFENDANT TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers, opposition, and reply.

“A party who fails to plead a cause of action.¿.¿. 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.”  (CCP § 426.50.)  Causes of action involving the same transaction or occurrence as the claims in the plaintiff’s complaint are compulsory and are forfeited if not pleaded in the same action.  (CCP § 426.30(a); 426.10(c).)  The Court has no discretion to deny a motion for leave to file a compulsory cross-complaint absent substantial evidence of bad faith.  (Silver Organizations Ltd. v. Frank (1990) 217 Cal.App.3d 94, 98-99.)  Permission to file a permissive cross-complaint may be granted in the interest of justice at any time during the action.  (CCP § 428.50(c).)

Defendant Sherry Mehdian moves for leave to file a compulsory cross-complaint against Plaintiff Wilfred Uy and his counsel, asserting causes of action for fraud, unjust enrichment, conversion, and receipt of stolen property. Plaintiff’s complaint seeks unpaid wages for caregiving services given to Defendant’s brother and mother.

Defendant represents that Plaintiff admitted at a July 2022 deposition to “stealing” the care logs from his time caring for Defendant’s brother and mother. Defendant asserts that this is conversion and Plaintiff’s counsel has violated the Penal Code by receiving converted property. Defendant also asserts that Plaintiff fraudulently induced Defendant’s brother and mother into hiring him by failing to disclose that he lacked certain education and training. And Defendant complains Plaintiff was unjustly enriched by living with Defendant’s brother and mother without paying rent.

In opposition, Plaintiff states Defendant has known Plaintiff possessed the care logs since July 2021 when Plaintiff produced it in discovery and has known of potential claims for fraud and unjust enrichment since December 2020. Plaintiff asserts Defendant has brought this motion and cross-complaint in bad faith to harass Plaintiff and to preclude the care logs from being used at trial.

As stated, the Court must allow leave to file a compulsory cross-complaint absent substantial evidence of bad faith. Defendant has delayed bringing this motion, and it appears counsel do not have a good working relationship. The Court is skeptical of the timing of this cross-complaint, and of whether it may be no more than a litigation tactic. But Plaintiff has not shown substantial evidence of bad faith. The cross-complaint may be challenged by demurrer or other motion.

Defendant’s motion is GRANTED.