Judge: Michael E. Whitaker, Case: 22SMCV02324, Date: 2023-09-12 Tentative Ruling

Case Number: 22SMCV02324    Hearing Date: October 31, 2023    Dept: 207

TENTATIVE RULING

DEPARTMENT         207

HEARING DATE      October 31, 2023

CASE NUMBER       22SMCV02324

MOTION                    Motion for Leave to File Cross Complaint

MOVING PARTY     Defendant Nina Loren Damjanovich

OPPOSING PARTY  Plaintiff Ben Michael Tilden

BACKGROUND

Defendant Nina Loren Damjanovich (“Defendant”) previously moved for leave to file a cross-complaint to allege compulsory counterclaims against Plaintiff Ben Michael Tilden (“Plaintiff.”)  At the hearing on September 12, 2023, the Court determined that Plaintiff had not been served with the notice of motion and motion, and continued the hearing to October 31 to permit Defendant to properly serve Plaintiff. 

Defendant re-filed the motion for leave to file a cross-complaint, including a proof of service, indicating that Plaintiff was served electronically via Plaintiff’s counsel at the email address arya@bmclaw.com on September 14, 2023. 

On October 23, 2023, Plaintiff’s counsel filed a declaration, indicating that neither counsel nor counsel’s office has yet received notice of the motion or a copy of the proposed cross-complaint.  (Azizi Decl. ¶ 2.)  The declaration further indicates that after being made aware of the motion at the September 13 status conference, Plaintiff’s counsel reached out to Defendant’s counsel about potentially stipulating to the proposed cross-complaint, but did not hear back.  (Azizi Decl. ¶ 4 and Ex. 1.)  Plaintiff therefore requests that the Court deny Defendant’s request for lack of diligence.

LEGAL STANDARD

            Code of Civil Procedure section 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.

Code of Civil Procedure section 426.30, subdivision (a) provides:

Except as otherwise provided by statute, if a party against whom a complaint has been filed and served fails to allege in a cross-complaint any related cause of action which (at the time of serving his answer to the complaint) he has against the plaintiff, such party may not thereafter in any other action assert against the plaintiff the related cause of action not pleaded.

Code of Civil Procedure section 426.50 provides:

A party who fails to plead a cause of action subject to the requirements of this article, whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave to amend his pleading, or to file a cross-complaint, to assert such cause at any time during the course of the action. The court, after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to amend the pleading, or to file the cross-complaint, to assert such cause if the party who failed to plead the cause acted in good faith. This subdivision shall be liberally construed to avoid forfeiture of causes of action.

ANALYSIS

            Plaintiff filed the complaint against Defendant in this action on November 14, 2022, alleging two causes of action: (1) Motor Vehicle; and (2) General Negligence; in connection with a vehicular collision that occurred between Plaintiff and Defendant in September 2021.  Defendant filed an Answer on January 6, 2023, but did not file a cross-complaint. 

            Defendant now seeks leave to file a cross-complaint to allege two causes of action: (1) negligence and (2) motor vehicle against Plaintiff in connection with the same vehicle collision incident.  (See Proposed Cross-Complaint.)  Defendant’s counsel has attached an attorney declaration to the Motion explaining that a cross-complaint was not filed at the time of the Answer in this matter due to an unintentional “oversight and lack of communication” on the part of the law office.  (De Soto Decl. ¶ 4.)

            The Court finds that the failure to file a cross-complaint with the Answer was the result of counsel’s oversight, inadvertence, mistake, and neglect.  The provision permitting leave is to be construed liberally to avoid forfeiture of causes of action.  Therefore, the Court is inclined to grant Defendant’s request for leave to file the cross-complaint.

Notwithstanding Plaintiff’s counsel’s declaration indicating that they did not actually receive the notice of motion, motion, or proposed cross-complaint, Defendant provided a proof of service, signed under penalty of perjury, indicating that counsel was electronically served on September 14, 2023.  Moreover, Plaintiff’s counsel has had actual notice of the pending motion since the September 12, 2023 hearing, and could have retrieved copies from the docket. 

Conclusion

            Based upon the record, the Court grants Defendant’s request for leave to file the cross-complaint and deems the cross-complaint filed as of September 15, 2023.  Further, the Court orders Defendant to serve the cross-complaint on Plaintiff via personal service on or before November 7, 2023.    

            Defendant to provide notice of the Court’s ruling and file a proof of service of the same.

DATED: October 31, 2023                                                     ___________________________

Michael E. Whitaker

                                                                                          Judge of the Superior Court