SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background 

On June 27, 2023, Plaintiff Wayne Johansson (“Plaintiff”) filed his First Amended Complaint (“FAC”) against defendants Ze'ev Patrick Waismann (“Waismann”) and San Gabriel Valley Humane Society (“SGVHS”) for damages arising from a dog bite. Defendant Waismann previously filed his Answer to Plaintiff’s original complaint on April 7, 2023 

Waismann now seeks leave to file a cross-complaint against SGVHS for indemnification, apportionment of fault and/or contribution, and declaratory relief.  

SGVHS opposes the motion. As of February 6, 2024, no reply was filed. 

  

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.) 

Waismann argues he recently became aware that SGVHS had information that the dog, which he had adopted from SGVHS, previously exhibited purported aggressive behavior, and that SGVHS failed to disclose this information to Waismann. Waismann contends his proposed cross-complaint against SGVHS is a mandatory cross-complaint, and that there is no evidence of bad faith. 

In opposition, SGVHS argues the motion was not made in good faith, and that it is a strategic attempt to keep SGVHS in the case and to prevent the Court from granting SGVHS’s pending motion for summary judgment.  

Here, Waismann’s proposed cross-complaint against SGVHS is permissive, rather than compulsory. A compulsory cross-claim is a claim defendant has against plaintiff, and arises out of the same transaction, occurrence, or series of transactions as the cause of which plaintiff alleges in his complaint. (CCP § 428.10; K.R.L. P'ship v. Superior Ct. (2004) 120 Cal. App. 4th 490, 498.) Waismann seeks to cross-complain against a co-defendant after having already filed his Answer. Even if the subject matter is related to Plaintiff’s complaint, it is a permissive cross-complaint governed by CCP § 428.50(c), which need only be granted in the interest of justice. The Court is not persuaded by SGVHS’s contention that the motion seeking leave is a strategic attempt to undermine SGVHS’s motion for summary judgment. SGVHS moved for summary judgment on Plaintiff’s FAC; any cross-complaint against SGVHS is neither relevant nor will have any bearing on the Court’s decision. Further, the Court notes that the FAC was filed on July 10, 2023, and the motion for leave was filed three months later, on October 12, 2023. The facts do not support an inference of any deliberate delay tactic aimed at prejudicing SGVHS. Considering that the proposed cross-complaint arises out of the same transaction as Plaintiff’s claim against Waismann, the Court finds it in the interest of justice to allow the pleading. 

 

The motion for leave to file a cross-complaint is therefore GRANTED. Waismann is ordered to file his proposed cross-complaint within ten (10) days of the date of this Order.