Judge: Melvin D. Sandvig, Case: 22CHV00062, Date: 2023-07-20 Tentative Ruling

Case Number: 22CHV00062    Hearing Date: July 20, 2023    Dept: F47

Dept. F47

Date: 7/20/23                                                         TRIAL DATE: 9/18/23

Case #22CHCV00062

MOTION FOR LEAVE TO FILE CROSS-COMPLAINT

Motion filed on 6/23/23.

MOVING PARTY: Defendant/(proposed) Cross-Complainant Ramy George

RESPONDING PARTY: Plaintiffs Sam Dabbas and Maksim Zasypkin

NOTICE: ok

RELIEF REQUESTED: An order allowing Defendant to file a compulsory cross-complaint against Plaintiffs and an additional party. 

RULING: The motion is granted.  Defendant is ordered to separately file the cross-complaint. 

SUMMARY OF FACTS & PROCEDURAL HISTORY

On 1/26/22, Plaintiffs Sam Dabbas and Maksim Zasypkin filed this action against Defendant Ramy Gourg aka Ramy George (Defendant) for: (1) Violation of Business & Professions Code 7000, et seq.; (2) Breach of Contract, (3) Fraud, (4) Negligence and (5) Conversion.  On 5/23/22, default judgment was entered against Defendant.  On 6/16/22, pursuant to the stipulation of the parties, the default judgment was set aside and Defendant was ordered to file an answer within 10 days.  On 8/8/22, Defendant filed his answer to the complaint. 

On 6/23/23, Defendant filed and served the instant motion seeking an order allowing Defendant to file a compulsory cross-complaint against Plaintiffs and an additional party.  Defendant contends that he did not learn all of the facts which led to the need to file the cross-complaint until May of 2023.  Plaintiffs have opposed the motion. 

ANALYSIS

CCP 426.30(a) provides:

“Except as otherwise provided by statute, if a party against whom a complaint has been filed and served fails to allege in a cross-complaint any related cause of action which (at the time of serving his answer to the complaint) he has against the plaintiff, such party may not thereafter in any other action assert against the plaintiff the related cause of action not pleaded.”

CCP 426.50 provides:

“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.”

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.”

A trial court must grant a motion for leave to file a compulsory cross-complaint unless there is substantial evidence to support a finding that the moving party is acting in bad faith.  Silver Organizations Ltd. (1990) 217 CA3d 94, 97, 100.

Here, the parties dispute the facts underlying the claims in the complaint and those in the proposed cross-complaint.  As such, the Court finds that there is not substantial evidence to support a finding of bad faith on the part of Defendant. 

CONCLUSION

The motion is granted.  Defendant is ordered to separately file the cross-complaint.

The Court notes that Defendant has failed to electronically bookmark the exhibits attached to the motion as required.  See CRC 3.1110(f)(4).  The parties are warned that failure to comply with court rules and/or orders in the future may result in papers not being considered, matters being continued so that papers may be submitted in compliance with rules/orders and/or the imposition of sanctions.