Judge: Melvin D. Sandvig, Case: 23CHCV01589, Date: 2025-01-22 Tentative Ruling

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Case Number: 23CHCV01589    Hearing Date: January 22, 2025    Dept: F47

Dept. F47

Date: 1/22/25                                                               TRIAL DATE: 6/16/25

Case #23CHCV01589

MOTION FOR LEAVE TO FILE A CROSS-COMPLAINT

Motion filed on 6/26/24.

MOVING PARTY: Defendant Henry Mayo Newhall Memorial Hospital

RESPONDING PARTY: all other parties

NOTICE: ok

RELIEF REQUESTED: An order granting leave to file a cross-complaint against TLC Travel Staff, LLC.

RULING: The motion is granted.

SUMMARY OF FACTS & PROCEDURAL HISTORY

This action arises out of Plaintiffs Vienna Mevorach, by and through her Guardian ad Litem, Amanda Parry, and Amanda Parry’s (Plaintiffs) claims that defendants, including Henry Mayo Newhall Memorial Hospital (Henry Mayo), failed to timely diagnose, manage, and treat signs and symptoms of fetal distress during Parry’s labor and delivery on 7/18/22.  (See Request for Judicial Notice (RJN) - Complaint).  At the time of the incident, Parry’s primary labor and delivery nurse, Michelle Ince, R.N., was employed by TLC Travel Staff, LLC (TLC).  (See Munoz Decl., Ex.1, 2).

At the time of the incident, a contract between Henry Mayo and TLC was in effect (Master Agreement for Staffing Services or MASS).  (Munoz Decl., Ex.2, Section XI.C).  The MASS contains a mutual indemnification provision.  

On 6/1/23, Plaintiffs filed this action against several defendants, including Henry Mayo, for professional negligence.  (See RJN – Complaint).  On 7/12/23, Henry Mayo filed an answer, but did not file a cross-complaint.  Thereafter, Henry Mayo tendered the defense of the case to TLC pursuant to the MASS, wherein TLC agreed to indemnify Henry Mayo from liability it may incur “by reason of bodily injury…to the extent caused by the negligent acts or omission” of TLC employees “in the performance of their assignment” for Henry Mayo.  (Munoz Decl., Ex.3; Ex.2, Section XI.C).  As of the filing of this motion, TLC has not responded to Henry Mayo’s tender of defense.

Therefore, on 6/26/24, Henry Mayo filed and served the instant motion seeking an order granting leave to file a cross-complaint against TLC.  No opposition or other response to the motion has been filed. 

ANALYSIS

Henry Mayo’s Request for Judicial Notice (RJN) is granted.

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.”

Each of the causes of action Henry Mayo proposes to assert against TLC arise from “the same transaction, occurrence, or series of transactions or occurrences as the cause brought against” Henry Mayo.

With regard to when leave of court is necessary to file a cross-complaint, 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.”

The Court finds that it is in the interests of justice and judicial economy to allow Henry Mayo to file the cross-complaint in this action, rather than filing a separate action.

CONCLUSION

The motion is granted.  Henry Mayo must separately file the cross-complaint  and serve same on all parties in compliance with CCP 428.60.  Contrary to the assertion in the motion, a copy of the cross-complaint is not attached to the motion as Exhibit 4.  (See Munoz Decl. ¶6).