Judge: Michelle C. Kim, Case: 22STCV06584, Date: 2023-11-27 Tentative Ruling

Case Number: 22STCV06584    Hearing Date: November 27, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

HYUNG JUN KIM, 

Plaintiff(s),  

vs. 

 

RESTAURANT DEPOT, LLC, ET AL., 

 

Defendant(s). 

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      CASE NO: 22STCV06584 

 

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION FOR LEAVE TO FILE CROSS-COMPLAINT  

 

Dept. 31 

1:30 p.m.  

November 27, 2023 

 

I. Background 

On February 23, 2022, Plaintiff, Hyung Jun Kim (“Plaintiff”) filed this action against Defendants, Restaurant Depot, LLC (“Restaurant Depot”) and Does 1 to 25 for damages arising from an alleged inadequately maintained portion of a raised curb located in front of one of the refrigerators on Restaurant Depot’s property.   

On July 28, 2023, Plaintiff filed an amendment to complaint naming RD America, LLC (“RDA”) as Doe 1. On August 30, 2023, RDA filed its Answer to Plaintiff’s complaint.  

On October 27, 2023, RDA filed the instant motion seeking leave to file a cross-complaint against Samba Star, Inc. dba Samba Grill (“Samba Grill”) and Roes 1 to 20 for indemnity and contribution.  

The motion is unopposed.  

  

II. Motion for Leave to File Cross-Complaint  

A cross-complaint against any of the parties who filed the initial complaint or cross-complaint against the cross-complainant must be filed before or at the same time as the answer to the initial complaint or cross-complaint, which answer must be filed within 30 days of service of the complaint or cross-complaint.  (CCP §§ 412.20(a)(3), 428.50(a), 432.10.)  Any other cross-complaint may be filed at any time before the court has set a trial date.  (CCP §428.50(b).)   

If a party fails to file a cross-complaint within the time limits described above, he or she must obtain permission from the court to file the cross-complaint.  (CCP §§ 426.50, 428.50(c).)  Leave to file a mandatory cross-complaint must be granted absent bad faith. (Silver Organizations, Ltd. v. Frank (1990) 217 Cal.App.3d 94, 99.)  Leave to file a permissive cross-complaint need only be granted in the interest of justice. (CCP §428.50(c).) Where the proposed cross-complaint arises out of the same transaction as plaintiff’s claim, the court must grant leave to file the cross-complaint so long as defendant is acting in good faith. (Code Civ. Proc., § 426.50.) 

Here, Plaintiff was deposed on October 19, 2023. RDA contends Plaintiff caused or contributed to the incident because he failed to exercise reasonable care when stepping on and off the raised curb marked with yellow paint. RDA argues Plaintiff’s deposition revealed that, at the time of the incident, he was shopping for Samba Grill and was under Samba Grill’s membership with Restaurant Depot. RDA avers that Plaintiff’s membership with Samba Grill requires Samba Grill to defend and indemnify RDA for negligence caused by anyone using its membership. Prior to filing the motion, RDA issued a tender of defense and indemnity to Samba Grill, and Samba Grill did not respond. Here, RDA moved expeditiously to file its motion upon discovery of the relevant information, and the Court finds an absence of bad faith.  

Trial is currently set for January 23, 2024, which is just two months after the hearing on this motion. With the impending trial date, allowing RDA to file the cross-complaint will result in unfair prejudice to the proposed cross-defendant and Plaintiff because the parties will have to conduct additional discovery on the new contentions related to Samba Grill.  (See Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490; and Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-88.)  Consequently, as RDA acknowledges, the January 23, 2024 trial date would need to be continued. The Court notes the parties’ November 15, 2023 stipulation to continue trial was rejected on November 17, 2023 because a request for continuance resulting in a trial date more than 24 months from the complaint’s filing date requires a court order. The parties proposed a July 2024 trial date. This matter is not yet old, and had previously been continued once. Therefore, the Court finds good cause to continue the trial date to allow the parties sufficient time to conduct and complete discovery.  

 

The January 23, 2024 trial date is continued to ______________ at 8:30 a.m. in Department 31 of the Spring Street Courthouse.  The January 10, 2024 Final Status Conference is continued to _______________ at 10:00 a.m. in Department 31. All discovery and expert cutoff dates are continued to reflect the new trial date.    

 

Further, the motion for leave to file a cross-complaint is therefore GRANTED. RDA is ordered to file its proposed cross-complaint within ten (10) days of the date of this Order. 

 

 

Moving party is ordered to give notice.   

 

PLEASE TAKE NOTICE: 

  • Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. 

  • If a party intends to submit on this tentative ruling,¿the party must send an email to the court at¿sscdept31@lacourt.org¿with the Subject line “SUBMIT” followed by the case number.¿ The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.¿¿ 

  • Unless¿all¿parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.¿ You should assume that others may appear at the hearing to argue.¿¿ 

  • If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.¿ After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.¿ 

 

Dated this 22nd day of November 2023 

 

  

 

 

Hon. Michelle C. Kim 

Judge of the Superior Court