Judge: Michael E. Whitaker, Case: 20STCV04029, Date: 2023-01-10 Tentative Ruling

Case Number: 20STCV04029    Hearing Date: January 10, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

            Defendant Del Amo Fashion Center Operating Company, LLC (Defendant) moves to consolidate this case with Del Amo Fashion Center Operating Company, LLC v. Whiting-Turner Contracting Company. (Super. Ct. L.A. County, 2022, No. 22TRCV01314) for all purposes.  In the alternative, Defendant seeks leave from the Court to file a cross-complaint against Whiting-Turner Contracting Company (Whiting).  The motion is unopposed.

            Plaintiff Toni Marsden (Plaintiff) has filed a reply to the instant motion stating she is agreeable to consolidation only if the current trial date will remain or trial continuance will be minimal.

ANALYSIS

1. Consolidation

    

Per Local Rule 3.3, subdivision (g), “Cases may not be consolidated unless they are in the same department.  A motion to consolidate two or more cases may be noticed and heard after the cases, initially filed in different departments, have been related into a single department, or if the cases were already assigned to that department.”  (Super. Ct. L.A. County, Local Rules, rule 3.3(g)(1).)  Once the Court relates the cases, the Court may consolidate the actions and order a joint trial on matters that “involv[e] a common question of law or fact.”  (Code Civ. Proc., §1048, subd. (a).)

The Court has not deemed this case related to Del Amo Fashion Center Operating Company, LLC v. Whiting-Turner Contracting Company. (Super. Ct. L.A. County, 2022, No. 22TRCV01314).  Consequently, Del Amo Fashion Center Operating Company, LLC v. Whiting-Turner Contracting Company. (Super. Ct. L.A. County, 2022, No. 22TRCV01314) is not pending in this department, but rather in Department B of the Torrance Courthouse. 

1. Leave to File Cross-Complaint

Per Code of Civil Procedure section 428.10, a party against whom a cause of action is asserted may file a cross-complaint to assert “[a]ny 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.” (Code Civ. Proc., §428.10, subd. (b).) A party must obtain leave of court to file a cross-complaint if the party does not file the cross-complaint at the same time as the answer. The court may grant leave to file a cross-complaint in the interests of justice at any time during the course of the action. (Code Civ. Proc., §428.10, subd. (c).)

Defendant seeks leave to assert a claim for express indemnity against Whiting, based on an alleged contractual relationship between Defendant and Whiting regarding the construction of the stairway at issue in the underlying case.  (See Declaration of John W. Nielsen, ¶ 4.) “Undoubtedly, a claim for contribution or indemnity ‘arises out of’ the same transaction or occurrence as the plaintiff's claim.” (Countrywide Home Loans, Inc. v. Superior Court (1999) 69 Cal.App.4th 785, 799.)

The Court concludes it is in the interests of justice to resolve all issues regarding indemnification of the underlying accident in this action.

CONCLUSION AND ORDER

Therefore, the Court denies Defendant’s motion to consolidate this case with Del Amo Fashion Center Operating Company, LLC v. Whiting-Turner Contracting Company. (Super. Ct. L.A. County, 2022, No. 22TRCV01314). 

The Court grants Defendant’s motion for leave to file a cross-complaint pursuant to Code of Civil Procedure section 428.10, subdivision (b), and orders Defendant to file and serve the proposed cross-complaint on or before January 31, 2023.

Defendant shall provide notice of the Court’s ruling and file a proof of service of such.