Judge: Nathan R. Scott, Case: Spallino v. Ippolito, Date: 2023-05-19 Tentative Ruling

Cross-defendant Cue Industries LLC’s motion for leave to file cross-complaint is denied.

The proposed cross-complaint against defendant Jeryl Thompson is merely permissive, as Thompson has not asserted any claims against Cue in this action.  (See Robson decl. ¶ 5 & Ex. A [proposed cross-complaint]; see also Code Civ. Proc., § 426.30.)  “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; accord Code Civ. Proc., § 428.50, subd. (c).)

“The law is also clear that even if a good amendment is proposed in proper form, unwarranted delay in presenting it may — of itself — be a valid reason for denial.”  (Emerald Bay Community Assn. v. Golden Eagle Ins. Corp. (2005) 130 Cal.App.4th 1078, 1097, cleaned up.)

Cue has unreasonably delayed in seeking leave to file the proposed cross-complaint.  Cue knew the facts giving rise to its proposed cross-complaint as early as August 2020 but certainly no later than the summer of 2022.  (See Robson decl. ¶ 2 [declaring Cue was unaware of Thompson’s misconduct “until a private investigation was conducted by Nicole Miller and Associates” regarding Thompson’s behavior; “Thompson’s actions came fully into light during a shocking deposition of Thompson” conducted in Thompson v. Cue]; Ovando decl. ¶¶ 3-4 [Nicole Miller and Associates completed their investigation of Thompson in August 2020; Thompson deposed on 6/22/22 and 8/25/22].)

Trial in this case is now three weeks away, discovery is closed, and the proposed cross-complaint will only delay trial by unnecessarily enlarging the issues.

This ruling is made without prejudice to Cue filing a separate action against Thompson.  (See Corp. Code, § 17707.06, subds. (a), (b); see also Vera v. REL-BC, LLC (2021) 66 Cal.App.5th 57, 74 [awarding attorney fees to cancelled LLC – “the cancellation of an LLC does not completely end its ability to transact its affairs”].)

Cue shall give notice