I. Background 

On September 8, 2022, plaintiff A.P., a minor, by and through his Guardian Ad Litem Maria Roman, (“Plaintiff”) filed this action against defendant Downey Unified School District (“Defendant”) for damages arising from bullying at school, wherein Plaintiff was allegedly assaulted and battered by a fellow student. Defendant filed its Answer to Plaintiff’s complaint on December 8, 2022. 

Defendant now seeks leave to file a cross-complaint against third party Amber Estrada (“Estrada”), the mother and guardian ad litem for Victoria Dominguez (“Dominguez”) for equitable indemnity, declaratory relief, and a cause of action against the parent/guardian of a minor under California Education Code Section 48904(a)(1). Dominguez is the student who allegedly assaulted Plaintiff in the underlying action. 

Plaintiff opposes the motion, and Defendant filed a reply. 

Defendant contends the proposed cross-complaint against Ms. Estrada is compulsory because it arises from the same transaction or occurrence as Plaintiff’s vicarious liability claim against Defendant for negligent supervision. Dominguez’s deposition commenced on January 5, 2024, in which Dominguez admitted to fighting with Plaintiff. Defendant asserts that after it affirmed facts regarding Plaintiff’s allegations and the incident, Defendant now seeks leave to file a cross-complaint against the mother of Dominguez. Defendant argues that Dominguez’s deposition was a deciding factor in bringing the cross-complaint, and that it was not possible for Defendant to have brought its cross-complaint any earlier. 

Plaintiff argues Defendant was on notice since the date of the incident that Dominguez attacked Plaintiff, and that there are multiple videos of Dominguez repeatedly punching Plaintiff. Plaintiff argues Defendant’s motion is a stall tactic to delay the upcoming trial, because Defendant waited until January 2024 to file the instant motion for leave. Plaintiff contends she will be prejudiced by the delay in trial.  

Defendant asserts that just because it could have filed its motion earlier is not evidence of bad faith. Defendant reiterates that it waited for Dominguez to confirm the facts of the incident before deciding to file a cross-complaint against Dominguez’s parent/guardian ad litem.  

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.  

Here, Defendant’s proposed cross-complaint against Estrada is a permissive claim, not compulsory. A compulsory cross-claim is a claim defendant has against the party who brought the original complaint or cross-complaint, 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.) Cross-complaints against parties other than plaintiffs or cross-complainants are permissive, and while efficiency may be gained by resolving claims in cross-complaints filed in one action, courts may require parties to pursue separate actions. (Insurance Co. of No. America v. Liberty Mut. Ins. Co. (1982) 128 Cal.App.3d 297, 303.) Even if the subject matter is related to Plaintiff’s complaint, the proposed cross-complaint against the third party is a permissive cross-complaint governed by CCP § 428.50(c), which need only be granted in the interest of justice. Permission to file a permissive cross-complaint is solely within the trial court's discretion. (Crocker Nat. Bank v. Emerald (1990) 221 Cal. App. 3d 852, 864.) Judges have discretion to deny leave to file permissive cross-complaints, including based upon a finding of unexplained delay, depending upon the interests of justice. (Ibid.)  

Although it appears that Defendant had knowledge of Dominguez’s direct involvement in the altercation in or around the time of the incident, and that there may have been some delay in naming Dominguez’s parent/guardian ad litem as a party to the suit, the Court overall finds it in the interest of justice to allow the pleading. The Court is not persuaded by Plaintiff’s contention that the motion seeking leave is a strategic attempt to delay trial when this matter is not yet old, there have been no prior trial continuances, and Plaintiff has identified no prejudice. A trial continuance, in itself, because of a new party to the action is not prejudicial under the totality of the circumstances. Further, the facts and circumstances do not support an inference of bad faith or any deliberate delay tactic aimed at prejudicing Plaintiff. Considering that the proposed cross-complaint arises out of the same occurrence as Plaintiff’s claim against Defendant, 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. Defendant is ordered to file a separate copy of its proposed cross-complaint within five (5) days of the date of this Order. 

Moving party is ordered to give notice.   

PLEASE TAKE NOTICE: 

Dated this 21st day of February 2024