Judge Olivia Rosales, Case 21NWCV00381 2022-09-14 Tentative Ruling

Judge: Olivia Rosales, Case: 21NWCV00381, Date: 2022-09-14 Tentative Ruling

Case Number: 21NWCV00381 Hearing Date: September 14, 2022 Dept: SEC

DICKINSON v. NGUYEN

CASE NO.: 21NWCV00381

HEARING: 09/14/22

TENTATIVE ORDER

Defendants FRANKLIN C. NGUYEN and VAN B. LIEU’s Motion for Leave to File a Cross-Complaint is GRANTED.

Moving Party to give Notice.

The Proposed Cross-Complaint separately lodged as Exhibit 1 from the Moving Papers is deemed SERVED and FILED as of the date of the Court’s issuance of this Order.

This quiet title action was filed on June 15, 2021.

Defendants FRANKLIN C. NGUYEN and VAN B. LIEU (“Defendants”) seek to leave to file a cross-complaint containing “claims that [Defendants] have against [Plaintiffs]… which arise out the same transactions and/or series of transactions which would make the claims in… [the] Cross-Complaint compulsory. [¶] [Defendants] did not file a Cross-Complaint initially at the time that it answered Plaintiffs’ First Amended Complaint, albeit in good faith, as a result of mistake, inadvertence and/or excusable neglect.” (Nguyen Decl., ¶¶7-8.) The proposed Cross-Complaint asserts the following causes of action against the proposed Cross-Defendants Rudy Dickinson, Kristin Dickinson, Rudy Dickinson as Trustee of the Dickinson Trust; and Kristin Dickinson as Trustee of the Dickinson Trust: (1) Indemnification; (2) Apportionment of Fault; (3) Declaratory Relief; (4) Trespass to Timber; (5) General Negligence; (6) Intentional Infliction of Emotional Distress; and (7) Premises Liability.

In Opposition, Plaintiffs argue that the Motion should be denied for the following reasons: (1) Defendants’ Notice of Motion is fatally defective because the Notice does not state the grounds upon which the Motion is based; (2) Defendants’ memorandum is fatally defective; (3) Defendants’ delay in filing this Motion constitutes bad faith litigation tactics; and (4) Defendants proposed Cross-Complaint would cause undue prejudice to Plaintiffs.

Procedural Arguments

First, Plaintiffs contend that the Motion should be denied because Defendants’ Notice does not state the grounds for the Motion pursuant to CCP §1010. Because Plaintiffs filed a substantive Opposition, are clearly aware of the grounds for the Motion, and are not prejudiced by the defective Notice of Motion, the Court rejects this argument. (Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1288.) Further, an accompanying affidavit curing defects in a Notice of a Motion by disclosing the grounds upon which it will be made is treated as part of the Notice. (Quan Quock Fong v. Lyons (1912) 20 Cal.App.668.)

Second, Plaintiffs argue that Defendants’ Memorandum fails to comply with CRC Rule 3.1113, which states that a “memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” (Id.) The Court is not required to “comb through the record and the law for factual and legal support that a party has failed to identify or provide.” (See Quantum Cooking Concepts, Inc. v. LV Assocs., Inc. (2011) 197 Cal.App.4th 927, 934.) The Court also rejects this argument. Although Defendants’ Memorandum is sparse, it does contain a brief statement of facts (albeit the facts are heavily disputed by the parties), and some legal authorities.

Substantive Arguments

Next, Plaintiffs contend that the Motion should be denied because the filing of this Motion constitutes bad faith litigation tactics and because the proposed Cross-Complaint would cause Plaintiffs to suffer undue prejudice.

CCP §428.50 states: “(a) A party shall file a cross-complaint against any of the parties who filed the complaint or cross-complaint against him or her before or at the same time as the answer to the complaint or cross-complaint. (b) Any other cross-complaint may be filed at any time before the court has set a date for trial. (c) A party shall obtain leave of court to file any cross-complaint except one filed within the time specified in subdivision (a) or (b). Leave may be granted in the interest of justice at any time during the course of action.” CCP §426.50 states, “A party who fails to plead a cause of action…whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave to amend his pleading, or to file a cross-complaint, to assert such cause at any time during the course of the action. The court, after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to amend the pleading, or to file the cross-complaint…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.”

Given the liberal construction associated with permitting leave to file a cross-complaint, the Court finds that it would serve the interests of justice to grant the Motion. It is best to avoid multiplicity or duplicity of actions. The Motion is GRANTED.

Plaintiffs’ Evidentiary Objection No. 1(a) is OVERRULED. Plaintiffs’ Evidentiary Objection 1(b) is SUSTAINED. However, the Court notes that the Reply Declaration of James C. Nguyen, which merely reiterates the statements made in the Declaration of James C. Nguyen attached to the Moving Papers, complies with the requirements of CCP §2015.5.

The parties may seek a continuance of the January, 2023 trial date in Dept. SE-F, if necessary.