Judge: Michael E. Whitaker, Case: 20STCV39889, Date: 2023-01-05 Tentative Ruling

Case Number: 20STCV39889    Hearing Date: January 5, 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

Plaintiff Suzanna Jeffrey (Plaintiff) sued Defendant City of Calabasas (Defendant) based on injuries Plaintiff sustained when she allegedly fell off an exercise machine at Defendant’s exercise center.  Defendant seeks leave to file a cross-complaint against Ronald Jeffrey, Plaintiff’s husband.  Plaintiff opposes the motion.  Defendant replies.

DISCUSSION

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 Plaintiff’s husband, Ronald Jeffrey, based on an alleged clause in Plaintiff and Plaintiff’s husband’s gym membership contract which indemnifies Defendant from any losses Plaintiff incurs by reason of participation in any gym program.  (See Declaration of John R. Horstmann, Exhibit 2.)  “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.) 

In opposition, Plaintiff first contends Defendant’s motion should be denied because Defendant’s proposed cross-complaint for express indemnity is based on an unenforceable indemnity clause.  However, assessing the enforceability of the contractual clause in question would require the Court to consider Defendant’s proposed cause of action on its merits which is inappropriate at this stage. 

Next, Plaintiff argues Plaintiff would be severely prejudiced by Defendant’s two-year delay in seeking leave to file its cross-complaint for the following reasons: (1) it will likely further delay trial; (2) evidence of the parties’ intent when signing the applicable membership contract will be difficult to ascertain; and (3) it will result in the expenditure of additional time and money.  Further, Plaintiff attests that Defendant’s attempt to file the instant cross-complaint is aimed to harass and scare Plaintiff and her husband.  

In reply, Defendant argues that the two-year delay in filing the instant motion for leave to file a cross-complaint is largely due to the long process of Plaintiff filing her First Amended Complaint.  (Declaration of John R. Horstmann, ¶¶ 5-8.)  Further, Defendant argues Plaintiff will not suffer undue prejudice as most of the necessary discovery for the indemnity cause of action has been completed based on the deposition testimony of Plaintiff’s husband.  (Declaration of John R. Horstmann, ¶¶ 13-16.). Defendant concludes that Defendant would suffer undue prejudice if the instant motion were denied because it would require Defendant to file a separate action and then combine the two actions.

CONCLUSION AND ORDER

The Court concludes it is in the interests of judicial economy to resolve all issues regarding indemnification of the underlying incident in this action.  Therefore, 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 within 20 days of the hearing on the motion.

Defendant is ordered to provide notice of this order and file proof of service of such.