I. BACKGROUND 

Plaintiffs Charles Bernal (“Bernal”) and Artist Worldwide Agency, LLC (“AWA”) (collectively, “Plaintiffs”) filed this action against defendants Christopher Maggiore (“Maggiore”), Artists Worldwide (“AW”), Jamison Properties, Inc. (“Jamison Properties”) [dismissed on October 12, 2023], Force Protection Agency, Inc. (“FPA”), Doe 1, and Does 2-25 premised upon various allegations, such as interference with AWA’s business, breach of contract, assault, and battery. 

On March 3, 2023, Maggiore and AW (collectively, “Defendants”) filed their Answer to Plaintiffs’ complaint. 

On March 18, 2024, Defendants filed the instant motion leave to file a First Amended Answer (“FAA”) and leave to file a cross-complaint against Plaintiffs. 

Plaintiffs oppose the motion. Any reply was due on or before July 12, 2024; none has been filed to date. 

Defendants aver that they were formerly represented by Cole Sheridan (“Sheridan”), who withdrew as counsel on October 26, 2023, and that Defendants then retained attorneys Mark Robinius (admitted pro hac vice on January 29, 2024), Arnold Wang, and their associated law firms, to represent them in this matter. Defendants contend that after hiring current counsel, counsel admitted pro hac vice re-evaluated the matter and determined that the Answer could be “pled more robustly” with affirmative defenses, and that a cross-complaint should be filed. 

Substantively Defendants seek to add the following affirmative defenses: Accord and Satisfaction, Offset, Failure to Mitigate, After-Acquired Evidence, Attorney Fees Unavailable, Past Earnings Damages Inapplicable, Lack of Specificity, Contributory or Comparative Cause, Plaintiffs, Equitable Defense, Mitigation of Damages, Pre-Judgement Interest Uncertain, and Consent. Defendants also seek leave to file a cross-complaint against Plaintiffs for Breach of Contract, Promissory Estoppel, Conversion, Statutory Fraud, Negligent Misrepresentation, Unfair Competition, Tortious Interference with Prospective Business, Conspiracy, Defamation and Slander. 

Defendants argue there will be no prejudice because discovery is still at the early stage with no depositions having taken place or discovery requests served. 

Plaintiffs contend Defendants’ motion was brought on the eve of trial and late in the litigation, because trial is in less than eight weeks after the hearing date on this motion, and Defendants waited five additional months to request leave and selected the last day that written discovery requests could be served. Further, Plaintiffs contend any delay in discovery was due to Defendants’ failure to respond to discovery, and their own decision to not propound their own discovery. Maggiore’s deposition was noticed for a mutually agreeable date, but cancelled because Maggiore’s counsel reportedly suffered a stroke. Plaintiffs argue that granting leave would prolong the litigation and delay adjudication of the claims against them. Plaintiffs argue the proposed cross-complaint is permissive, rather than compulsory, and that they will be prejudiced if leave to file a cross-complaint were to be granted because the proposed cross-complaint is vague and uncertain. Plaintiffs contend the proposed FAA is also prejudicial because many of the affirmative defenses are inapplicable, and that Plaintiffs do not have time to conduct discovery on the new claims. 

None filed. 

II. MOTION FOR LEAVE TO FILE AMENDED PLEADING 

CCP § 473(a)(1) provides, in relevant part:  “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer.  The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.” 

“This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047.) 

Under CRC Rule 3.1324(a), a motion to amend a pleading shall (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. 

Under CRC Rule 3.1324(b), a separate declaration must accompany the motion and must specify (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made earlier. 

Even if a good amendment is proposed in proper form, a long, unwarranted and unexcused delay in presenting it may be a good reason for denial. In most cases, the factors for timeliness are: (1) lack of diligence in discovering the facts or in offering the amendment after knowledge of them; and (2) the effect of the delay on the adverse party. If the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the judge has discretion to deny leave to amend. (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.) Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, or added costs of preparation such as an increased burden of discovery. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488.) 

CRC Rule 3.1324(b) requires a separate declaration must accompany the motion and must specify (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made earlier. Here, the declaration of Mr. Robinius fails to specify the effect of the amendment nor why the proposed affirmative defenses are both necessary and proper. Merely seeking to file a “more robustly” pled Answer fails to meet the specificity requirement. (Robinius Decl. ¶ 8.) 

Additionally, the affidavit does not specify when the facts giving rise to the amended allegations were discovered, and why the request was not made earlier. Mr. Robinius was admitted pro hac vice to represent Defendants alongside Defendants’ California counsel of record Arnold Wang (“Mr. Wang”), who has been defense counsel since November 7, 2023. The general statement that Mr. Robinius, throughout the course of approximately two months after he was admitted pro hac vice to the time of the instant motion was filed, had “critically re-evaluated the evidence and the Plaintiffs’ allegations” and found the need to seek leave is vague and ambiguous. The Court is unclear as to why it took two months for Mr. Robinius to review the allegations, and why Mr. Wang himself did not review and evaluate the pleadings prior to the involvement of co-counsel to have sought leave sooner. 

The Court is not satisfied with Defendants’ counsel’s affidavit as it currently stands, based on the requirements outlined by CRC Rule 3.1324(b). 

Accordingly, the motion for leave to file a FAA is denied without prejudice. 

III. 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. 

Contrary to Plaintiffs’ contention that the proposed cross-complaint is permissive, the Court finds that it is compulsory because it is against the party who brought the original complaint, and arises out of the same transaction, occurrence, or series of transactions as the cause of which Plaintiffs allege in their 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.) Plaintiffs have not demonstrated with substantial evidence that Defendants acted in bad faith. Although the Court agrees that there is some evidence that Defendants have been dilatory in seeking leave, the delay in itself is not evidence of bad faith. Further, this action is still not yet old. There is still ample time to bring the matter to trial within a timely and reasonable manner. Although the current trial date will be disturbed due to the likely necessity of continuing the discovery cut-off date in order to provide Plaintiffs a fair opportunity to conduct discovery, the Court notes that there are currently three motions set after the trial date on its docket.  

Lastly, the Court will not consider Plaintiffs’ arguments that the cross-complaint is uncertain on a motion for leave. Any concerns of the validity of the proposed cross-complaint are grounds more proper for a demurrer or motion to strike. 

IV. CONCLUSION 

The motion for leave to file a FAA is DENIED without prejudice. 

The motion for leave to file a cross-complaint is GRANTED. Defendants are ordered to file a separate copy of the proposed cross-complaint within ten (10) days.