Judge Michelle C. Kim, Case 22STCV20089 2023-05-18 Tentative Ruling

This case arises from an automobile collision that occurred on July 6, 2020, in the city of Compton, County of Los Angeles, California, involving Plaintiffs Michell Bailey (“Bailey”) and Peggy Dawson (“Dawson”) (collectively, “Plaintiffs”), and Defendants Daniel Barela (“Barela”) and Estate of Joseph Felix (“Estate of Joseph Felix”) (collectively, “Defendants”). On June 20, 2022, Plaintiffs filed their Summons and Complaint. On August 7, 2022, Barela answered. On November 18, 2022, Estate of Joseph Felix answered.

On May 10, 2023, Defendants moved for leave to file a cross-complaint against Bailey for indemnification and apportionment of fault. Plaintiffs opposed.

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, whether through oversight, inadvertence, mistake, neglect, or other cause within the time limits described above, must obtain permission from the court to file the cross-complaint. (CCP §§ 426.50, 428.50(c).) 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. (CCP §§ 426.50.) This subdivision shall be liberally construed to avoid forfeiture of causes of action. (Ibid.) Leave to file a cross-complaint must be granted absent bad faith. (Silver Organizations, Ltd. v. Frank (1990) 217 Cal.App.3d 94, 99.)

“[W]hat constitutes “good faith”-or lack of it-under Code of Civil Procedure Section 426.50 must be determined considering and in conformity with the liberality conferred upon the trial courts by the section and by prior law. … [T]his principle of liberality requires that a strong showing of bad faith be made to support a denial of the right to file a cross-complaint under this section.” (Foot's Transfer & Storage Co. v. Superior Court (1980) 114 Cal.App.3d 897, 902.) A determination that the petitioner acted in bad faith may be premised on “substantial injustice or prejudice” to the opposing party. (Id. at 903. See also Gherman v. Colburn (1977) 72 Cal.App.3d 544, 558-59 (stating that leave was properly denied when the defendant’s motion “was merely a tactical strategic maneuver to deprive plaintiffs of a right to a jury trial”).)

Here, Defendants mistakenly served the wrong party and while trying to fix the parties and service issues, they inadvertently did not file, with their Answer, a cross-complaint against Michell Bailey. (Vasquez Decl. ¶¶ 4, 5.) Defendants argue that because the parties are still at the beginnings of discovery, there will be no prejudice to either party in granting this motion. (Vasquez Decl. ¶ 7.)

In opposition, Plaintiffs argue that Defendants failed to timely file their Cross-Complaint and subsequently filed the compulsory Cross-Complaint without first obtaining leave of Court; thus, they acted without good cause. (Decl. Peabody ¶ 10.) Plaintiffs, however, do not attest what substantial injustice or prejudice will result if the Court grants the defendants leave to file a cross-complaint.

· 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.

Hon. Michelle C. Kim

Judge of the Superior Court