Judge Serena R. Murillo, Case 20STCV29800 2022-08-18 Tentative Ruling

Judge: Serena R. Murillo, Case: 20STCV29800, Date: 2022-08-18 Tentative Ruling

Case Number: 20STCV29800 Hearing Date: August 18, 2022 Dept: 29

TENTATIVE

Defendants Macedonio Avila Garcia, and Frank C. Cotone’s motion for leave to file a cross-complaint is GRANTED.

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.)

Discussion

Defendants move to file a cross-complaint against Dr. George Rappard, Plaintiff’s treating physician, for equitable indemnity, contribution, apportionment of fault and declaratory relief. Defendants argue that the claims against Dr. Rappard arises out of the same transaction or occurrence that gives rise to Plaintiff’s complaint because they learned during the course of discovery that Dr. Rappard’s treatment of Plaintiff fell below the standard of care. Specifically, they argue, he performed invasive and aggressive interventional procedures, including but not limited to a lumbar nerve avulsion and dissection procedure, without first implementing appropriate conservative treatment. Defendants argue they have acted in good faith.

The Court finds that the cross-complaint is compulsory because it arises out of the same series of occurrences. “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 evidence that Defendants acted in bad faith to justify a denial of their motion to file a cross-complaint.

Plaintiff argues in opposition that at the eleventh hour, in an attempt to add irrelevant, prejudicial, and unrelated issues into the instant trial, Defendants seek to file a cross-complaint against Dr. Rappard. Plaintiff argues that in October of 2020, Plaintiff Moreno provided Defendants with all his medical records, including medical records for Dr. George Rappard. Thereafter, Defendants subpoenaed Plaintiff Moreno’s medical file from Dr. Rappard. While Defendant originally scheduled Dr. Rappard’s deposition as a treating physician for July 26, 2021, August 31, 2021, and September 21, 2021, Defendants unilaterally withdrew each Deposition Notice. Dr. Rappard’s deposition was never taken. Within this time, Plaintiff argues, Defendants have had ample opportunity to reserve motion dates and properly evaluate this matter. Plaintiff vehemently denies that Dr. Rappard’s care of Plaintiff Moreno was below the standard of care. Further, Plaintiff argues that during confidential settlement discussions in August of 2021, Defense counsel advised counsel for Plaintiff that if their paltry settlement offer was not accepted, they would file a medical malpractice action against Dr. George Rappard in this matter, and that was over 12 months ago.

Plaintiff additionally argues that Defendants have not brought the motion in good faith due to their unreasonable delay. Further, Plaintiff argues that the motion was brought in bad faith merely to harass Plaintiff and his treating physician. If Defendants were serious about the medical negligence claim, Defendants would not have threatened the instant Motion and attempted to premise a settlement on the threat of said Motion. As mentioned above, over 12 months ago, during confidential settlement discussions in August of 2021, Defendants’ counsel advised Counsel for Plaintiff Moreno that if their paltry settlement offer was not accepted, they would file a medical malpractice action against Dr. George Rappard in this matter.

In reply, Defendants argue that there has been no delay or bad faith. Defense counsel took the deposition of Dr. Rappard off calendar based upon discovery that Dr. Rappard’s treatment had fallen below the standard of medical care and that he would need to be named as a cross-defendant. Upon receiving such confirmation, via expert opinion, the instant motion hearing date was reserved and the notice to intent was served. Defendants argue that Plaintiff is incorrectly paraphrasing and that a cross-complaint against Dr. Rappard was never threatened. Defense counsel only told Plaintiff’s counsel that they obtained an expert opinion on Dr. Rappard’s treatment, and that the treatment was not medically supported by the records.

The Court finds that Plaintiff has not made a sufficient showing of bad faith as the only evidence of this threat is Plaintiff’s counsel’s declaration. 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.) While Plaintiff claims that Defendants threatened to file a cross-complaint against Dr. Rappard a year ago if Plaintiff did not accept the settlement offer, Defendants claim that Plaintiff is merely incorrectly paraphrasing their words. Without more evidence, the motion must be granted.

Conclusion

Therefore, in view of the well-established liberality with which CCP section 426.50 is to be applied, Defendants’ motion for leave to file a cross-complaint is GRANTED.

Moving party is ordered to give notice.