Judge: Michael E. Whitaker, Case: 21STCV05201, Date: 2022-07-25 Tentative Ruling

Case Number: 21STCV05201    Hearing Date: July 25, 2022    Dept: 32

000PLEASE 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

Plaintiffs Liam Umber (“Liam”), by and through is Guardian ad Litem, Jessica Mubaraki, and Shan Umer (collectively, “Plaintiffs”) sued defendants NewVac Lift, LLC (“NewVac”) and RD Waldman Construction (“Waldman”) (collectively, “Defendants”) based on injuries Plaintiffs allege Liam sustained in an elevator sold to proposed cross-defendants Joseph Odekerken, Joris Dassen, and Modern Beach Living (collectively, “Cross-Defendants”) by NewVac and installed by Waldman. 

Defendants seek leave of court to file a cross-complaint against Cross-Defendants as owners of the subject premises and landlords for Plaintiffs.  Plaintiffs oppose the motion.

DISCUSSION

Defendants move to file a permissive cross-complaint against Cross-Defendants under Code of Civil Procedure section 428.10.[1]  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).) 

The law allows a defendant in a civil case to cross-complain against entities not originally parties to the action if there is a sufficient subject matter connection between the action and the cross-complaint. Specifically, a defendant may file a cross-complaint setting forth any cause of action that either (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.  The term transaction embraces not just commercial contracts but also whatever may be done by one person which affects another’s rights and out of which a cause of action may arise.  For example, a defendant whose negligence is alleged to have caused an accident may file a cross-complaint for equitable indemnity against concurrent tortfeasors. California cases have generally approved a broad and liberal interpretation of [Code Civ. Proc., section 428.10’s predecessor] to permit a declaration of the rights and liabilities of all parties involved in a particular case.

(Santa Barbara Channelkeeper v. City of San Buenaventura (2018) 19 Cal.App.5th 1176, 1186–1187 [cleaned up]; see also Countrywide Home Loans, Inc. v. Superior Court (1999) 69 Cal.App.4th 785, 799 [“Undoubtedly, a claim for contribution or indemnity ‘arises out of’ the same transaction or occurrence as the plaintiff's claim”].) 

Here, Defendants seek to assert claims for implied/equitable indemnity, breach of contract, comparative indemnity/apportionment of fault and declaratory relief against Cross-Defendants based on the subject incident.  In particular, per the proposed cross-complaint, Defendants assert that when the subject elevator was installed, a safety door and safety/warning stickers were installed in addition.  And after the subject incident, a representative of Waldman observed that the safety door and safety/warning stickers were removed.  Defendants allege that “Cross-Defendants removed the safety door and safety/warning sticker before Plaintiff’s incident.”  (See Declaration of Jeffrey M. Jensen, ¶ 3, Exhibit A, ¶¶ 19-20.)   As such, the Court finds that Defendants’ contemplated assertions against Cross-Defendants arise out of the same incident alleged by Plaintiffs.  Thus, the Court concludes it is in the interests of justice to resolve all issues stemming from the underlying incident in a single action.

In opposition, Plaintiffs contend that Defendants’ motion should be denied as untimely.   But mere delay, without a showing of prejudice, in seeking leave of court to file a cross-complaint is insufficient to warrant a denial of the relief sought by Defendants.  (See generally Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564 [“A court, at any time before or after commencement of trial, may allow an amendment to a pleading in furtherance of justice.  Where no prejudice is shown to the adverse party, the liberal rule of allowance prevails”].) 

Here, Plaintiffs have not established that they will be prejudiced by the filing of the cross-complaint at this stage of the litigation, especially with the trial set in July 2023, other than generalized complaints of expending further time and resources due to discovery issues which may or may not arise from the cross-complaint.  Equally important, Defendants contend that the factual basis for the cross-complaint arose during the depositions of the property owners in May and June 2022, in which the property owners admitted to removing the safety door and safety/warning sticker before Liam was injured.  (See Reply, pp. 4-5; see also Declaration of Jeffrey M. Jensen, ¶ 7, Exhibit E.)  In short, Plaintiffs’ protestations do not warrant a denial of the motion. 

CONCLUSION AND ORDER

Therefore, the Court grants Defendants’ motion for leave of court to file a cross-complaint pursuant to Code of Civil Procedure section 428.10, and orders Defendants to file and serve the proposed cross-complaint within 20 days of the hearing on the motion.