Judge: Melvin D. Sandvig, Case: 23CHCV03624, Date: 2024-10-08 Tentative Ruling
Case Number: 23CHCV03624 Hearing Date: October 8, 2024 Dept: F47
Dept. F47
Date: 10/8/24
Case #23CHCV03624
MOTION FOR
LEAVE TO FILE CROSS-COMPLAINT
Motion filed on 8/26/24.
MOVING PARTY: Defendants Jocelyn
Andrea Ortega and Mario Ortega
RESPONDING PARTY: Plaintiff Sofia Borbon
NOTICE: ok
RELIEF REQUESTED: An order allowing
Defendants Jocelyn Andrea Ortega and Mario Ortega to file a compulsory
cross-complaint.
RULING:
SUMMARY OF FACTS & PROCEDURAL HISTORY
This action arises out of a motor vehicle accident that
occurred on 6/28/23 in Mission Hills, California between a vehicle driven by Estella
Padilla and a vehicle driven by Defendant Jocelyn Andrea Ortega. Plaintiff Sofia Borbon (Plaintiff) was a
passenger in the vehicle driven by Estella Padilla.
On 11/19/23, Plaintiff filed this action against Defendants
Jocelyn Andrea Ortega and Mario Ortega (collectively, Defendants) for: (1) Motor
Vehicle and (2) General Negligence. On
2/13/24, Defendants answered the complaint.
Defendants claim that that the accident was the fault of the Estella
Padilla. Plaintiff has not named Estella
Padilla as a defendant in her complaint.
Therefore, on 8/26/24, Defendants filed and served the instant motion
seeking an order allowing Defendants to file a compulsory cross-complaint
against Estella Padilla for: (1) Indemnification and (2) Apportionment of
Fault. Plaintiff has not opposed or
otherwise responded to the motion.
ANALYSIS
Defendants mistakenly cite CCP 389 regarding joining
indispensable parties to an action and CCP 379 regarding joining defendants in
one action. Defendants have not shown
that Estella Padilla is an indispensable party to the action. See CCP 389(a). Nor can Defendants force Plaintiff to join
Estella Padilla as a defendant in this action.
See CCP 379. Additionally,
the proposed cross-complaint is not compulsory as the claims therein are not alleged
against Plaintiff. See CCP
426.30(a). If Defendants are ultimately
found liable in this action, they could later pursue their claims for indemnification
and apportionment of fault against Estella Padilla in a separate action.
The proposed cross-complaint is permissive. 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.”
Additionally, since the claims in the cross-complaint are
not alleged against Plaintiff and a trial date has not been set in this case,
Defendants do not need leave of court to file the proposed
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.”
CONCLUSION
As noted above, the relief requested is not necessary at
this time because no trial date is set. As
such, Defendants may file the proposed cross-complaint without a court
order. The Court finds that due to the imminent
filing of the cross-complaint, the case will not be at issue. Therefore, the Case Management Conference
which is also set for 10/8/24 will be continued.