Judge: Monica Bachner, Case: 20STCV21073, Date: 2022-09-20 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time.  See, e.g., CRC Rule 324(b).   All parties are otherwise encouraged to appear by Court Call for all matters.

Case Number: 20STCV21073    Hearing Date: September 20, 2022    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendant Motykie’s motion for leave to file a cross-complaint is granted. 

Defendant Gary Motykie, M.D. (“Motykie”) (“Defendant”) moves for leave to file a cross-complaint against Plaintiff Mara Pellegrino (“Pellegrino”) (“Plaintiff”).  (Notice of Motion, pg. 2.) 

Background

On June 3, 2020, Plaintiff filed her Complaint, pro per, against Defendant alleging causes of action for (1) breach of contract, (2) breach of oral argument, (3) medical negligence, (4) infliction of emotional distress, and (5) fraud. On July 20, 2020, Defendant filed his general denial after default judgment was entered against Defendant on July 13, 2020. This Court granted Defendant’s motion to set aside the default judgment in the amount of $46,837.99.  Defendant filed the instant motion on March 22, 2022, in response to Plaintiff’s failure and refusal to return the judgment that was provided to her after Defendant’s account was levied by Plaintiff on January 4, 2021, to pay the judgment.  Defendant seeks from Plaintiff the principal sum of $46,837.99 plus interest at the legal rate according to proof at trial. (Motion, pg. 3.)  Plaintiff filed an opposition to this motion.

Defendant moves for leave to file a Cross-Complaint for conversion, restitution, and unjust enrichment.  (Motion, pg. 4.)  Defendant argues his proposed Cross-Complaint arises out of the same controversy as the action brought by Plaintiff; leave should be granted based on California’s principle of liberality; and granting his motion will effectuate the principles of finality and judicial economy that will not prejudice any party.  (Motion, pg. 4.) Plaintiff argues in opposition that Defendant’s claim of conversion does not meet the appellate standard to warrant granting his motion and is therefore meritless. (Opposition, pg. 6.)

 Motion for Leave to File a Cross-Complaint

          C.C.P. §428.10 provides: “A party against whom a cause of action has been asserted in a complaint or cross-complaint may file a cross-complaint setting forth…[a]ny cause of action he has against any of the parties who filed the complaint or cross-complaint against him. (C.C.P. §428.10(a).) “A party who fails to plead a cause of action…may apply to the court for leave to…file a cross-complaint, to assert such cause at any time during the course of the action.” (C.C.P. §426.50.) “The court, after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to…file the cross-complaint, to assert such cause if the party who failed to plead the cause acted in good faith. This subdivision shall be liberally construed to avoid forfeiture of causes of action.”  (C.C.P. §426.50.) “The purpose of allowing a cross-complaint is to enable all matters in dispute between the parties relating to or depending upon the contract, transaction or subject matter upon which the action is brought or affecting the property to which it relates, to be determined by a single action and by a single judgment. In other words, to avoid a multiplicity of suits and thereby save vexation and expense.” (Bracey v. Gray (1944) 65 Cal.App.2d 282, 285–286.)

           Here, Defendant is exercising his option to assert any cause of action against Plaintiff in a cross-complaint.  Leave to file Defendant’s cross-complaint serves the interest of judicial efficiency because the cross-claim will avoid a multiplicity of suits. Plaintiff’s opposition addresses the merits of Plaintiff’s cause of action for conversion, however these challenges can be addressed in subsequent motion practice.  Further, Plaintiff’s substantial rights will not suffer prejudice should this Court grant Defendant leave to file his cross-complaint. To the extent Plaintiff needs time to challenge the cross-complaint, the trial date can be continued.

          Based on the foregoing, Defendant’s motion for leave to file a cross-complaint is granted.

Dated:  September  _____, 2022

Hon. Monica Bachner

Judge of the Superior Court