Judge Ralph C. Hofer, Case Number: 23GDCV00618, Date: 2024-12-06 Tentative Ruling

Plaintiff Leah Nazaryan, a minor, through her GAL, alleges that on March 31, 2021, while plaintiff was on the property of defendant Caruso Management Company, Ltd., an unhinged metal stand fell on plaintiff’s head, causing plaintiff bodily injuries and damages.

The complaint alleges that defendant, as the owner and operator of the premises, should have known of the dangerous condition, and should have used due care in making the premises reasonably safe, and if the invitor has created such conditions or has actual knowledge of them, must give reasonable warning of the danger to an invitee. The complaint alleges that defendants who own, lease, occupy or control property are negligent if defendants fail to use reasonable care to keep the property in safe condition, fail to discover any unsafe conditions, or fail to repair, replace or give adequate warning.

Defendant Caruso Management Company, Ltd. (Caruso Management) seeks to file a cross-complaint against Edit Vardanya, the parent of plaintiff Leah Nazaryan, arguing that the negligence of Vardanyan caused plaintiff’s alleged injuries, as the subject incident would not have occurred but for Vardanyan’s negligent or careless supervision of plaintiff, entitling defendant Caruso Management to indemnity in this case.

Defendant relies on the deposition testimony of Vardanya, in which Vardanyan testified that plaintiff and other children were playing in the grassy area near the restaurant, and either went under or over the rope of the metal stanchion to access the grassy area. [Dixon Decl., para. 6, Ex. B, Vardanyan Depo., pp. 36, 39, 40]. Vardanyan also testifies that based on Vardanyan’s position moments before the incident, Vardanyan could not see the children playing, did not see the subject incident, and did not know what object struck plaintiff until after the incident. [Vardanyan Depo. pp. 45-49]. Defendant argues that the rather than properly monitor the child, Vardanyan shirked parental responsibilities and those inactions caused or contributed to the incident.

The case was set for trial at a hearing on December 14, 2023. Defendant filed its answer to the complaint on November 6, 2023. This motion was filed on September 30, 2024.

Under CCP §428.10, a party to a complaint may file a cross-complaint setting forth “any cause of action he has against a person alleged to be liable” under the complaint, “whether or not such person is already a party to the action... if the cause of action asserted in his cross-complaint... arises out of the same transaction or occurrence as the cause brought against him.”

“(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.

(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 the action.”

The cross-complaint is not against any of the parties who filed the complaint against it, as the cross-defendant is operating as a GAL for plaintiff, and does not in the complaint seek Vardanyan’s own damages. The cross-complaint was not filed before the court set a date for trial, so leave may be granted in the interests of justice. It is held that relief under the permissive provisions of the statute is appropriate when a defendant seeks to file a cross-complaint for indemnity. Platt v. Coldwell Banker Real Estate Services (1990) 217 Cal.App.3d 1439, 1444.

Defendant argues that the cross-complaint is compulsory, and cites to CCP § 426.50, under which the court may grant relief from this failure by permitting leave to file or amend a cross-complaint:

“A party who fails to plead a cause of action subject to the requirements of this article, whether through inadvertence, mistake, neglect, or other cause, 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. 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 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.”

“(a) Except as otherwise provided by statute, if a party against whom a complaint has been filed and served fails to allege in a cross-complaint any related cause of action which (at the time of serving his answer to the complaint) he has against the plaintiff, such party may not thereafter in any other action assert against the plaintiff the related cause of action not pleaded.

Here, the causes of action sought to be alleged are not against plaintiff, but a third party, plaintiff’s parent. Accordingly, although the motion in part applies the bad faith standards generally applicable to compulsory cross-complaints, as pointed out in the opposition, the cross-complaint here would in fact not be compulsory.

The motion argues that defendant has the right to file a cross-complaint for indemnity, based on case law under which claims for equitable indemnity and comparative fault are held to be virtually always transactionally related to the main action. See Time for Living, Inc. v. Guy Hatfield Homes/All American Development Co. (1991) 230 Cal.App.3d 30, 38; Platt, supra, at 1444. However, the case law cited involves cross-complaints which were timely filed, and then sought to be dismissed or summarily adjudicated, not the situation here, where the cross-complaint was not filed at the time defendant answered, or before the case was set for trial, and defendant now seeks leave of court to file the cross-complaint.

In this case, the case has already been set for trial, so it is in the court’s discretion to grant leave “in the interest of justice.” Defendant argues that granting the motion would promote judicial economy because the causes of action asserted in the proposed cross-complaint arise out of the same incident alleged in the complaint. This situation is clearly the case here.

Plaintiff has filed opposition to the motion, arguing that any failure to supervise was known or should have been known since the date of the incident, and the complaint identified plaintiff as a minor, and responses to written discovery have made it clear plaintiff was at the premises with her parent. Plaintiff argues denial of leave is proper when there has been unnecessary delay in filing a cross-complaint.

With respect to permissive cross-complaints it is generally recognized that the declaration of counsel should show that it would be in the interest of justice to grant leave to file, including some reasonable excuse why the cross-complaint was not filed earlier, such as mistake, inadvertence, excusable neglect, or recent discovery of new facts. Weil & Brown, Civil Procedure Before Trial (The Rutter Group, Cal. Practice Guide, 2024 rev.) 6:562.

In this case, counsel’s declaration indicates that defendant took Vardanyan’s deposition on July 10, 2024, that there was a delay in receiving a copy of the deposition transcript due to the illness of the reporter until August 28, 2024, and that meanwhile, on August 1, 2024, defendant gave formal notice of its intention to file a cross-complaint, and requested a stipulation for such a filing with a follow up request for indemnification, but there was never any response. [Dixon Decl., paras. 6-8, Exs. B, C]. This motion for leave to file a cross-complaint was filed on September 30, 2024.

The motion argues that defendant only delayed in filing a cross-complaint to confirm the propriety of its filing through the testimony its counsel elicited from the deposition of Vardanyan, and thereafter to resolve the matter amicably to avoid having to file a cross-complaint. Defendant has sufficiently explained the recent confirmation of facts supporting the claims sought to be made, and it would appear that first confirming facts before bringing a new party into a lawsuit should be encouraged. Contrary to the argument in the opposition, there appears to be nothing from the very terse form complaint which would suggest that a parent was present or that plaintiff was of an age requiring supervision, or was not being properly supervised at the time of the incident. [See Nalbandan Decl., para. 2, Ex. 1, Complaint, paras. Prem.L-1, GN-1].

Overall, the claims arise out of the same series of events, and the court has a strong interest in having all of these matters tried together in one proceeding, which would promote judicial efficiency.

In addition, the opposition fails to point to any prejudice from the delay in seeking amendment which would affect plaintiff’s ability to prosecute the action on the merits, such as that evidence has disappeared, or that plaintiff will have insufficient time to explore the liability of the new party, who has in fact been participating in this matter as plaintiff’s GAL. The trial is now set for October of 2025, so there appears to be plenty of time to gather evidence and conduct discovery to address the claims in the cross-complaint.

While the opposition argues that the proposed cross-complaint fails to sufficiently state a cause of action against the third party, as argued in the opposition, there remains plenty of time once the cross-complaint is filed for the new party to raise such arguments in a demurrer or motion to strike after appropriate meet and confer has been conducted. The interests of justice here favor the judicial efficiency of the alleged liability for plaintiff’s alleged injuries and damages and any indemnity obligations for the incident being determined and apportioned in a single proceeding. The motion accordingly is granted.

Defendant is ordered to e-file its signed cross-complaint by the close of business this date, and the cross-complaint will be deemed served on the current parties upon the e-filing of the document.

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