Judge Ronald F. Frank, Case Number: 21TRCV00873, Date: 2024-03-21 Tentative Ruling

Judge: Ronald F. Frank, Case: 21TRCV00873, Date: 2024-03-21 Tentative Ruling

Case Number: 21TRCV00873 Hearing Date: March 21, 2024 Dept: 8

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HEARING DATE: March 21, 2024¿

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CASE NUMBER: 21TRCV00873

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CASE NAME: Brice Head, individually and as trustee of the Head 2005 Trust dated June 7, 2005 v. Paseo Verde, LLC, et al.

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MOVING PARTY: Plaintiff/Cross-Defendant, Brice Head

RESPONDING PARTY: Defendant/Cross-Complainant, Reynolds Development Corporation

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TRIAL DATE: Not Set.

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MOTION:¿ (1) Motion to Strike Cross-Complaint

Tentative Rulings: (1) DENIED. Taking the holistic view of the case and its status, the Court vacated the trial date on 9/28/23. So there was no trial set when the Cross-Complaint was filed.

I. BACKGROUND¿¿

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A. Factual¿¿

On November 29, 2021, Plaintiff, Brice Head, individually and as Trustee of the Head 2005 Trust dated June 7, 2005 (“Plaintiff”) filed a Complaint against Defendant, Paseo Verde, LLC, Reynolds Development Corporation, and DOES 1 through 10. The Complaint alleges causes of action for: (1) Statutory Violation; (2) Negligence; and (3) Breach of Contract.

On December 21, 2023, Defendant/Cross-Complainant, Reynolds Development Corporation (“Reynolds”) filed a Cross-Complaint against Cross-Defendants, Kessler Construction, Inc., M. Cohen and Sons, Inc., S&W Waterproofing, Inc., and MOES 1 through 30. The Cross-Complaint alleges causes of action for: (1) Breach of Contract; (2) Equitable Indemnity; (3) Total Indemnity; (4) Contribution; and (5) Declaratory Relief.

Plaintiff, Brice Head, individually, and trustee of the Head 2005 Trust dated June 7, 2005, has filed a Motion to Strike the Cross-Complaint.

B. Procedural¿¿

On February 5, 2024, Plaintiff filed a Motion to Strike. On March 8, 2024, Defendant/Cross-Defendant, Reynold filed an opposition. On March 12, 2024, Plaintiff filed a reply briefs.

¿II. MOVING PARTY’S GROUNDS

Here, Plaintiff/Cross-Defendant, Brice Head (“Head”) filed this Motion on the grounds that he argues that Cross-Complainant was barred from filing the cross-complaint without leave from this Court pursuant to Code of Civil Procedure § 428.50.

III. ANALYSIS¿

A. Legal Standard

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1).) The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].) The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)¿¿

B. Discussion

Head brings this motion to strike Reynold’s Cross-Complaint on the grounds that Plaintiff – superficially correctly – notes that pursuant to Code of Civil Procedure § 428.50, et seq., Reynolds was required to seek leave of this Court prior to filing the cross-complaint as it was filed after the setting of the trial date. “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.” (Code Civ. Proc. § 428.50 (a).) “Any other cross-complaint may be filed at any time before the court has set a date for trial.” (Code Civ. Proc. § 428.50 (b).) “A party shall obtain leave of court to file any cross-complaint except one filed within the time specified in subdivision (a) or (b) [above]. Leave may be granted in the interest of justice at any time during the course of the action.” (Code Civ. Proc. § 428.50(c).)

Head explains that on May 17, 2022, after a CMC hearing, a Notice of Ruling was prepared and served as to all Defendants notifying Defendants that the Post-Mediation Status Conference scheduled for February 8, 2023, the Final Status Conference was scheduled for October 31, 2023, and Trial on the matter was scheduled for November 7, 2023. However, the cross-complaint was not filed until December 21, 2023.

However, in opposition, Reynolds does not argue its cross-compliant was in compliance with Code of Civil Procedure § 428.50. Instead, Reynolds argues this Court should permit the filing of its cross-complaint because the trial date had been vacated by Court order before the cross-complaint was filed, and because permitting the cross complaint will serve the interest of justice and avoid the multiplicity of lawsuits. For example, Reynolds contends that it this Court is inclined to grant the motion to strike, that Reynolds would subsequently file a motion for leave to file a cross-complaint, and resolution of the matter will be delayed even further. Plaintiff does not assert any substantive reason why the Cross-Complaint should be stricken.

The Code of Civil Procedure is clear that a party can file a cross complaint at any time during the course of action, meaning before judgment has been entered. Code Civ. Proc. § 428.50 (b); City of Hanford v. Superior Court, supra, 208 Cal.App.3d at p. 587 [“We conclude ‘during the course of the action’ should not be construed to permit the filing of a cross-complaint after final judgment has been entered on the underlying complaint”]; Orient Handel v. United States Fid. & Guar. Co. (1987) 192 Cal.App.3d 684, 701 [finding that a trial court did not abuse its discretion by granting leave to file a cross-complaint too close to the time set for trial]. Here, trial has yet to occur. In fact, on September 28, 2023, this Court found good cause to vacate the trial date. Because of this, the Court does not understand Head’s argument that he will suffer severe prejudice if this cross-complaint is allowed to be filed. Here, the Court finds that if Reynolds were to file a Motion for Leave to File Cross-Complaint, on the record before the Court it would find good cause to grant the same.

As such, Brice Head’s Motion to Strike is DENIED. The Court will entertain oral argument as to any substantive reason why the cross -complaint should be stricken.