Judge: Serena R. Murillo, Case: 20STCV00389, Date: 2023-02-28 Tentative Ruling

Case Number: 20STCV00389    Hearing Date: February 28, 2023    Dept: 29

TENTATIVE

Defendants The Irvine Company, LLC; Westwood Gateway, II, LLC’s motion for leave to file a cross-complaint is GRANTED.

Defendants are ordered to file and serve the proposed-cross complaint attached as Exhibit A to their motion within 30 days of the hearing on this motion. 

Legal Standard

CCP § 428.10 provides that a party against whom a cause of action has been asserted may file a cross-complaint setting forth:  “(b) Any cause of action he has against a person alleged to be liable thereon, whether or not such person is already a party to the action, if the cause of action asserted in his 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.”  (CCP § 428.10(b).) A party shall obtain leave of court to file a cross-complaint if it is not concurrently filed with the answer or at any time before the court sets a trial date. Leave may be granted in the interest of justice at any time during the course of the action.  (CCP § 428.10(c).)

If a cross-complaint is compulsory, leave must be granted as long as the cross-complainant is acting in good faith, so as to avoid forfeiture of the causes of action. (C.C.P. §426.50; See Silver Organizations, Ltd. v. Frank (1990) 217 Cal.App.3d 94, 101 (concluding that the late filing of the motion to file a compulsory cross-complaint absent some evidence of bad faith is insufficient evidence to support denial of the motion).) To be considered a compulsory cross-complaint, the related cause of action must have existed at the time defendant served its answer to the complaint. (Weil & Brown, California Practice Guide (2008), Civil Procedure Before Trial §6:516; See also Crocker Nat’l Bank v. Emerald (1990) 221 Cal.App.3d 852, 864.) If the cross-complaint is not compulsory, but rather is permissive, the Court has sole discretion whether to grant or deny leave. (Id.)

“A party who fails to plead a cause of action subject to the requirements of this article, whether through over-sight, 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.”  (CCP § 426.50.)  The Court shall grant such a motion if the moving party acted in good faith.  (CCP § 426.50.)   

The determination that the moving party acted in bad faith must be supported by substantial evidence.  (Foot's Transfer & Storage Co. v. Superior Court (1980) 114 Cal.App.3d 897 (evidence insufficient to support trial court's denial of motion to file cross-complaint notwithstanding that defendant waited 23 months after service of complaint and 16 months after filing answer before asserting right to file cross-complaint, where nothing in record suggested that defendant was unusually reprehensible with regard to delay, plaintiff waited for two years to file action, and plaintiff’s counsel equivocated concerning stipulation allowing the filing of cross-complaint at same time counsel conducted discovery concerning the claim defendant sought to assert in the cross-complaint).)   

At minimum, a very strong showing of bad faith on the part of the defendant is required before a court will be justified in denial of leave to file or amend a cross-complaint.  (Sidney v. Superior Court (1988) 198 Cal.App.3d at 710, 718.)  The burden of showing bad faith rests on the party opposing the allowance of the cross-complaint.  (Silver Organizations Ltd. v. Frank (1990) 217 Cal.App.3d 94.)  

A determination that the petitioner acted in bad faith may be premised on “substantial injustice or prejudice” to the opposing party. (Foot's Transfer & Storage Co. v. Superior Court, 114 Cal.App.3d at 903; See also Gherman v. Colburn (1977) 72 Cal.App.3d 544, 558-59 (stating that leave was properly denied when the defendant’s motion “was merely a tactical strategic maneuver to deprive plaintiffs of a right to a jury trial”).)

Discussion

Defendants move to file a cross-complaint against Brightview Landscape Services, Inc. Plaintiff claims personal injuries related to allegations that he was involved in an automobile vs. bicycle collision with Defendant Albert on the driveway of Gate Ave. onto Cotner Ave. Although the incident did not occur on Defendant Irvine’s property, Plaintiff and Defendant Albert claim the incident was caused by landscaping at the adjacent office property obstructing the involved parties’ view of the location as they approached. Defendants have tendered defense of this matter to landscaping vendor Brightview, but Brightview has failed to accept its contractual defense and indemnity obligations without judicial intervention. Plaintiff and Defendant Albert have no objection to the relief sought and will not be filing any oppositions. (Chao Decl. ¶ 7.)

The Court finds that the cross-complaint is compulsory because it arises out of the same occurrence, namely, the collision at issue in this case. “Cross-complaints for comparative equitable indemnity would appear virtually always transactionally related to the main action.”  (Time for Living, Inc. v. Guy Hatfield Homes (1991) 230 Cal.App.3d 30, 38.) Thus, there must be substantial evidence that Defendants acted in bad faith to justify a denial of her motion to file a cross-complaint. As no opposition has been filed, there is no showing or argument of bad faith.

As such, the motion must be granted.

Conclusion

Therefore, Defendants’ motion for leave to file a cross-complaint is GRANTED.

Defendants are ordered to file and serve the proposed-cross complaint attached as Exhibit A to their motion within 30 days of the hearing on this motion. 

Moving party is ordered to give notice.