I. BACKGROUND 

On July 11, 2022, plaintiff Norman Bogdanow (“Plaintiff”) filed this action against defendants Janet Reagan (“Defendant”) and Does 1-50 for damages arising a motor vehicle collision. 

On June 12, 2023, Defendant filed her answer and simultaneously filed a cross-complaint against Susan Bogdanow (“Bogdanow”) and Roes 1 through 10 for negligence, equitable indemnity, and contribution.  

On October 12, 2023, cross-defendant Bogdanow filed her answer to Defendant’s cross-complaint. Trial is currently set for June 24, 2024.  

Bogdanow now seeks leave to file a cross-complaint against Defendant for negligence and loss of consortium. Defendant opposes the motion, and Bogdanow filed a reply. 

Bogdanow avers she was unaware of the existence of any viable claim against Defendant until she retained her current counsel, Mary Sun, to represent her in this action. Bogdanow’s former counsel, Lewis Brisbois, was relieved on March 7, 2024, and a Notice of Limited Scope Representation was filed on April 2, 2024. Defense counsel avers she immediately sought leave to file a cross-complaint upon retention.   

Defendant argues the motion for leave is untimely and in bad faith because Bogdanow had personal knowledge, and no explanation was given as to why the cross-complaint could not have been timely filed. Further, Defendant argues that Bogdanow’s verified responses to discovery did not attribute any physical, mental, or emotional injuries arising from the incident, yet she is now alleging personal injury claims which contradict her verified discovery responses. As a result, Defendant contends that the parties will be required to engage in additional and new discovery, which is prejudicial to all parties involved. 

Bogdanow contends that just because Plaintiff in this matter is Bogdanow’s husband, and that Plaintiff is represented by counsel, does not obligate Plaintiff’s counsel to file a cross-complaint for Bogdanow nor to advise Bogdanow regarding any claims since she is not Plaintiff’s counsel’s client. Bogdanow avers she is an eighty-year old housewife with no legal knowledge, and had no realization that she had a cause of action against Defendant. 

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).)  A motion to file a cross-complaint at any time during the course of the action must be granted unless bad faith of the moving party is demonstrated where forfeiture would otherwise result. (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).) Further, 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.) Code Civ. Proc., § 426.50 supplements the authority provided generally to amend pleadings.  

Bogdanow’s proposed cross-complaint against Defendant is compulsory because it is against the party who originally brought a cross-complaint against her, and arises out of the same transaction, occurrence, or series of transactions as the cause of which Plaintiff alleges in his complaint. (K.R.L. P'ship v. Superior Ct. (2004) 120 Cal. App. 4th 490, 498.) Leave to file compulsory cross-complaints must be granted where moving parties acted in good faith. (CCP §426.50; Silver Organizations, Ltd. v. Frank (1990) 217 Cal.App.3d 94, 98-99.)  

In reviewing a denial of leave to file a compulsory cross-complaint, appellate courts review the entire record for any substantial evidence of bad faith, defined as, “dishonest purpose, moral obliquity, sinister motive, furtive design or ill will.” (Silver Organizations Ltd. v. Frank (1990) 217 Cal.App.3d 94, 100.) Here, a delay in seeking leave, in itself, is not evidence of bad faith and there is no evidence that Bogdanow was properly advised of all of her legal claims at the time she was represented by Lewis Brisbois. The Court notes that Bogdanow does not reply to Defendant’s contention that the granting of the motion will necessitate further discovery due to the contradictions with Bogdanow’s discovery responses regarding damages. Nonetheless, Defendant does not identify how much additional discovery would be necessitated to supplement that which has already been completed, nor has any actual prejudice to the parties been identified. An increase in expenses is not necessarily prejudicial. The action is not yet old, and there is no substantial evidence of dishonest purpose, moral obliquity, or sinister motive for the Court to make any determination that the motion for leave was brought in bad faith.  

III. CONCLUSION 

The motion for leave to file a cross-complaint is therefore GRANTED. Bogdanow is ordered to file a separate copy of her proposed cross-complaint within five (5) days of the date of this Order. 

Additionally, the June 24, 2024 trial date is continued to ______________ at 8:30 a.m. in Department 31 of the Spring Street Courthouse. The June 11, 2024 Final Status Conference is continued to _______________ at 10:00 a.m. in Department 31. Discovery and motion cut-off dates shall track with the continued trial date as between Defendant and Bogdanow only; all other discovery and trial-related dates shall remain the same.   

Moving party is ordered to give notice.   

PLEASE TAKE NOTICE: 

Dated this 30th day of May 2024