Judge: Melvin D. Sandvig, Case: 22CHCV00348, Date: 2024-02-22 Tentative Ruling

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Case Number: 22CHCV00348    Hearing Date: February 22, 2024    Dept: F47

Dept. F47

Date: 2/22/24

Case #22CHCV00348

MOTION FOR LEAVE TO FILE CROSS-COMPLAINT

Motion filed on 9/15/23.

MOVING PARTY: Defendants Elizabeth Ann Ricci, individually and as Trustee of the Ricci Family 1990 Trust; Richard Ricci and Neil Ricci

RESPONDING PARTY: Plaintiff Telecom Leasing, Inc.

NOTICE: ok

RELIEF REQUESTED: An order granting Defendants Elizabeth Ann Ricci, individually and as Trustee of the Ricci Family 1990 Trust; Richard Ricci and Neil Ricci leave to file a cross-complaint against Defendant Robert Brown.

RULING: The motion is granted.

SUMMARY OF FACTS & PROCEDURAL HISTORY

This action arises out of Plaintiff Telecom Leasing, Inc.’s (Plaintiff) lease of units at commercial property owned, managed and/or maintained by Defendants Elizabeth Ann Ricci, individually and as Trustee of the Ricci Family 1990 Trust; Richard Ricci and Neil Ricci (collectively, Ricci Defendants).  (Complaint ¶¶7, 10-16).  Plaintiff alleges that the unit adjacent to the units it leased was leased and occupied by Defendant Robert Brown (Brown).  (Complaint ¶12).

Plaintiff alleges that there were two plumbing leaks/floods at the property which caused it damage.  (See Complaint ¶¶17-31).  As a result, on 5/19/22, Plaintiff filed this action for negligence against the Ricci Defendants and Brown.  Id.  On 7/20/22, the Ricci Defendants answered the complaint.  There is no proof of service of the complaint on Brown and he has not appeared in the action.

On 9/15/23, the Ricci Defendants filed and served the instant motion for leave to file a cross-complaint for indemnity, contribution, apportionment of fault and declaratory relief against Brown and Roes 1-50.  No opposition or other response to the motion has been filed. 

ANALYSIS

The proposed cross-complaint is not compulsory as it does not allege claims against Plaintiff.  See CCP 426.30(a); CCP 426.50.

CCP 428.10 provides, in relevant part:

“A party against whom a cause of action has been asserted in a complaint or cross-complaint may file a cross-complaint setting forth either or both of the following:

. . .

(b) Any cause of action he has against a person alleged to be liable thereon, whether or not such person is already a party to the action, if the cause of action asserted in his cross-complaint (1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause brought against him.”

CCP 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.”

Based on the foregoing and the fact that the court has not set a date for trial, the Ricci Defendants are not required to obtain leave of court to file the proposed cross-complaint.  CCP 428.50(b).

Even if leave was required, the Court would find that it is in the interests of justice and judicial economy to allow the Ricci Defendants to file and serve their proposed cross-complaint. 

CONCLUSION

The motion is granted.  The Ricci Defendants are ordered to separately file the proposed Cross-Complaint which is attached to the Thompson declaration as Exhibit A.