Judge Ralph C. Hofer, Case Number: 23GDCV02674, Date: 2025-02-07 Tentative Ruling

Plaintiff Marissa Alfonso alleges that in June of 2022, at the intersection of North Central Avenue and West Milford Street in Glendale, defendant Henrik Ghazaryan negligently operated a motor vehicle owned by defendant Hayk Ghazaryan, causing injury and damages to plaintiff. The complaint alleges that defendant failed to stop for the red light facing him and was driving so fast that he lost control of his vehicle.

The complaint was filed on December 22, 2023. Defendants filed their answer on January 17, 2024. The trial date was set at a Case Management Conference on September 24, 2024. The trial date is set for May 18, 2026.

Defendants Henrik Ghazaryan and Hayk Ghazaryan seek to file a cross-complaint against third party driver Luis Estrada. Defendants argue that the proposed cross-complaint against Estrada arises out of the same automobile accident as plaintiff’s complaint, and so is a related cause of action under CCP section 426.20, but was not previously pled because only recently have new facts and evidence from a mediation been revealed.

Defendants argue that this litigation arises out of an accident that involved four vehicles. Defendants indicate that Defendant Henrik Ghazaryan entered the subject intersection as the traffic signal was phasing from green to yellow when Luis Estrada made a left turn into the intersection, causing defendant to turn right to avoid a collision with Estrada and collide with plaintiff Marissa Alfonso. Plaintiff’s vehicle was then pushed into the front bumper of Gevorg Gevorkyan’s vehicle, which was at a complete stop behind plaintiff.

Defendants argue that on November 20, 2024, a video was presented at mediation and certain new facts were revealed that suggest that Luis Estrada had contributed to the occurrence of the incident and the injuries and damages of plaintiff.

The declaration of counsel submitted with the moving papers states that “Through the course of discovery, Defendants have determined that a cross-complaint against LUIS ESTRADA is appropriate.” [Wenning Decl., para. 6].

“7. The proposed cross-complaint against third party driver, Luis Estrada, arises out of the same automobile accident as the Plaintiff's Complaint alleges, thus, is a related cause of action under Code of Civil Procedure section 426.20, however was not previously plead because only recently have new facts and evidence from a November 20, 2024, mediation been revealed.”

The cross-complaint submitted with the moving papers is brought against Luis Estrada as cross-defendant, along with Roes, and alleges causes of action for indemnity, declaratory relief, and contribution.

Under CCP §428.10 (b), 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 was not filed before the court set a date for trial, so leave may be granted in the interests of justice. As pointed out in the moving papers, 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. This posture is not a situation where the indemnity claims will be lost if not asserted in this matter, so the cross-complaint here would not be compulsory, but permissive, and both sides appear to concede as much.

Defendants, in fact, argue that if defendants are not granted leave to file their cross-complaint for indemnity, another action may be necessary, resulting in duplication of time and effort. [See Wenning Decl., paras. 8, 9].

(While defendants refer to CCP section 426.20, this section does not exist, and the reference is evidently to section 428.10, as the 426 series pertains to compulsory cross-complaints, not to permissive cross-complaints).

Plaintiff has filed opposition to the motion, arguing that defendants’ motion is not timely under CCP section 428.50, as not filed at the time of his responsive pleading or before the case was set for trial. This argument appears to disregard the fact that plaintiff is seeking leave to file a pleading because it was not filed without leave within the deadlines, which leave, under CCP section 428.50 (c), set forth above, “may be granted in the interest of justice at any time during the course of the action.” The motion is accordingly not untimely, as it is brought during the course of the action.

Plaintiff also argues that defendants are barred from filing a cross-complaint by the two-year statute of limitations, arguing that defendants have known of the involvement of Luis Estrada in the accident since the date of the accident, and defendant Henrik Ghazaryan described Estrada’s involvement in his statements in the traffic report.

It is not clear that this is an appropriate ground for denying leave to file a permissive cross-complaint against a third party, as this attack on the merits of the claims in the cross-complaint is arguably not appropriately made by a party other than the cross-defendant against whom the claims are brought, and such a challenge can be asserted once the pleading is filed and cross-defendant is served, if cross-defendant chooses to assert such a challenge.

Plaintiff also argues that defendants did not recently discover the dash cam video of the incident, but have been in possession of the video since the day of the collision and provided a copy to plaintiff in discovery in March of 2024, so the information was not first discovered at mediation. There is also an argument that plaintiff has obtained evidence that the subject video was altered. These are arguments which can be asserted in any argument in connection with the statute of limitations defense if asserted by cross-defendant, and, as to alteration, in plaintiff’s pursuit of the complaint.

In any case, these arguments are not supported by admissible evidence. Plaintiff has submitted no declaration supporting these arguments, such as a declaration of counsel confirming the conduct in discovery, or describing what occurred at the mediation. The documents attached to the opposition, apparently a traffic collision report and a report by an audio video forensic analyst, are not authenticated.

In any case, plaintiff in opposition has submitted no evidence, and pointed to no facts or argument which would suggest that plaintiff would be prejudiced by permitting amendment, or that plaintiff will have insufficient time to prosecute plaintiff’s action on the merits.

The court has a strong interest in having all of these matters tried together, and would generally disfavor having defendant be forced to bring another civil action against a potentially responsible party, which would likely be related to this action, or to wait until the close of this action. The matter is currently set for trial in May of 2026, so there is plenty of time to sort out any problems with the merits of the cross-complaint, and to pursue further discovery concerning the new party and claims, and to pursue further information concerning the purported alteration of evidence.

The interests of justice here would 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.

Plaintiff in the opposition seeks sanctions against defendants for bringing a frivolous motion. No authority is cited permitting this court to impose such sanctions, it has not been established that defendants’ motion is frivolous, as it is granted. Plaintiff has failed to bring an appropriate motion under CCP sections 128.5 or 128.7 permitting defendants the statutory mandated safe harbor to withdraw their motion. No sanctions will be awarded.

Defendants are ordered to e-file the 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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