Judge: Peter A. Hernandez, Case: 20PSCV00910, Date: 2022-09-28 Tentative Ruling
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Case Number: 20PSCV00910 Hearing Date: September 28, 2022 Dept: O
Defendants LA Fun
Yoga & Dance LLC’s and Hongyan Kuehn’s unopposed Motion for Leave to File
Cross-Complaint is GRANTED. The proposed cross-complaint is deemed filed and served as to all parties who have appeared in this case as of the
hearing date [see below].
Background
1.
Breach of Contract—Lease for Non-Residential Property
2.
Breach of Contract—Guaranty of Lease
On January 11, 2021, Plaintiff filed an “Amendment to Complaint,” wherein Hongyan Y. Kuehn (“Kuehn”) was substituted in lieu of Doe 1.
The Final Status Conference is set for October 21, 2022. Trial is set for November 4, 2022.
Legal Standard
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. (Code Civ. Proc., §§ 412.20, subd. (a)(3), 428.50, subd. (a), 432.10.) Any other cross-complaint may be filed at any time before the court has set a trial date. (Code Civ. Proc., §428.50, subd, (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. (Code Civ. Proc., §§ 426.50, 428.50, subd. (c).)
Cross-complaints are categorized as either compulsory or permissive.
Compulsory
The compulsory cross-complaint statute (i.e., Code Civ. Proc., § 426.30, subd. (a)) prohibits a party from asserting a claim when, at the time the party answered a complaint in prior litigation, the party failed to allege in a cross-complaint any then-existing related cause of action against the plaintiff. A “related cause of action” is defined therein as “a cause of action which arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint.” (Id.)
A defendant who fails to file a compulsory cross-complaint at the time of filing and serving an answer “whether through oversight, inadvertence, mistake, neglect, or other cause” may apply to the court for leave to belatedly file the cross-complaint. (Code Civ. Proc. § 426.50, subd. (a).) The court must grant leave, “upon such terms as may be just to the parties,” if the defendant has acted in good faith and provided notice to the adverse party. (Id.) This provision is “liberally construed to avoid forfeiture of causes of action.” (Id.)
Permissive
The permissive cross-complaint statute (i.e., Code Civ. Proc., § 428.10) enables a party against whom a cause of action has been asserted in a complaint or cross-complaint to file a cross-complaint setting forth either or both (a) any cause of action that party has against any of the parties who filed the complaint or cross-complaint against him, and/or (b) any cause of action that party has against another person, whether or not this person is already a party to the action, if the cause of action asserted in the cross-complaint “(1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause brought against him.” (Id.)
Discussion
LA Fun and Keuhn move the court for leave to file their proposed cross-complaint. LA Fun and Keuhn also move the court for a 90-day continuance of the trial and discovery cut-off dates.
LA Fun’s and Keuhn’s proposed cross-complaint asserts causes
of action against:
Plaintiff, Apex Capital Investment Corp., Alicia Yu and Roes
1-10 for (1) Fraud, (2) Breach of Contract, (3) Negligence, (4) Request for
Declaratory Relief and (5) Violation of the LA County COVID-19 Tenant
Protection Law. The proposed cross-complaint is compulsory, in that the causes
of action asserted therein “arise[ ] out of the same transaction, occurrence,
or series of transactions or occurrences as the cause of action which the
plaintiff alleges in his complaint.” (Code Civ. Proc., § 426.50.) Both lawsuits
arise out of the parties’ rental relationship as to the subject property.
There is no indication of bad faith. The motion, moreover, is unopposed. The court, then, grants the motion as to the request for leave. The proposed cross-complaint is deemed filed and served as to all parties who have appeared in this case as of the hearing date.
The court will hear from the parties at the time of the hearing with respect to the trial and discovery cut-off continuance requests.