Judge: Serena R. Murillo, Case: 20STCV32515, Date: 2022-08-18 Tentative Ruling
Case Number: 20STCV32515 Hearing Date: August 18, 2022 Dept: 29
TENTATIVE
Defendant James Edward’s motions to amend admissions,
amend erroneous deposition testimony, and file a cross-complaint are GRANTED.
Legal Standard
Amending Requests for Admissions
“The court may permit withdrawal or
amendment of an admission only if it determines that the admission was the
result of mistake, inadvertence, or excusable neglect, and that the party who
obtained the admission will not be substantially prejudiced in maintaining that
party's action or defense on the merits.”¿ (Code Civ. Proc. § 2033.300(b).)¿
“The court may impose conditions on the granting of the motion that are just,
including, but not limited to, the following: (1) An order that the party who
obtained the admission be permitted to pursue additional discovery related to
the matter involved in the withdrawn or amended admission. (2) An order that
the costs of any additional discovery be borne in whole or in part by the party
withdrawing or amending the admission.”¿ (Code Civ.
Proc.¿§¿2033.300(c)(1)-(2).)
¿
“[A]ny¿doubts in ruling on a motion to
withdraw or amend an admission must be resolved in favor of the moving
party.”¿¿(New Albertsons, Inc. v. Superior Court¿(2008) 168 Cal.App.4th
1403, 1408 [“The record here does
not clearly establish that [responding party’s mistake in admitting the matter
was inexcusable or show that the withdrawal of the admission would
substantially prejudice the [propounding party.”] Such requirement
comports with the policy in favor of trial being held on the merits.¿¿(See id.)¿¿“The¿court’s
discretion to¿deny a motion under [C.C.P.¿§¿2033.300]¿is limited to
circumstances where it is clear that the mistake, inadvertence, or¿neglect
was inexcusable, or where it is clear that the withdrawal or amendment would substantially
prejudice the party who obtained the admission in maintaining that party’s
action or defense on the merits.”¿¿(Id. at 1420-21.)¿
Amending
Depo Testimony
CCP
§ 2025.520 provides in pertinent part:
(b) The deponent has 30 days
after the reporter sends written notice to review and sign the transcript and
make any corrections to it.
(f) If the deponent fails or refuses to approve the transcript
within the allotted period, the deposition shall be given the same effect as
though it had been approved, subject to any changes timely made by the
deponent.
(g) Notwithstanding subdivision (f), on a seasonable motion to
suppress the deposition, accompanied by a meet and confer declaration under
Section 2016.040, the court may determine that the reasons given for the
failure or refusal to approve the transcript require rejection of the
deposition in whole or in part.
When a mistake in deposition
testimony has been discovered after the 30-day period, the Rutter Group
California Practice Guide: Civil Procedure Before Trial; Chapter 8E, Section 14
(Deposition Transcripts) directs the practitioner to find relief through Code of
Civil Procedure section 473(b).
Leave to File Cross-Complaint
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
A. Motions for Leave to Amend Request for Admissions and Leave to Amend
Deposition Testimony
Defendant Edward moves for leave to amend
his request for admissions and for leave to amend the erroneous deposition
testimony of Defendant Edward due to mistake, inadvertence, and/or excusable
neglect, arguing that throughout the course of this lawsuit, Defendant
litigated this matter under the belief that Defendant was operating the vehicle
in the course and scope of employment for Avis at the time of the accident.
On April 8, 2021, Plaintiff served Requests
for Admission, Set One, on both Defendant Edward and Defendant Avis, requesting
that they each admit that Edward was employed by Defendant Avis and driving
within the course and scope of his employment with Defendant Avis on the date
of loss. Given the information known at that time, Defendants admitted these
requests for admissions in their responses dated April 22, 2021.
On May 19, 2022, defense counsel received
an email that Defendant Edward was not employed by Defendant Avis at the time
of the accident; and that his true employer operated an independent rental
facility not within the corporate structure of Avis Budget Group, Inc. In fact,
the rental facility that employed Defendant Edward operates the facility wholly
independently from Defendant Avis. On June 8, 2022, defense counsel learned
that Defendant Edward’s true employer at the time of the accident was Central
Pacific Management Group, who independently owned and operated the rental
facility employing Defendant Edward at the time of the accident.
Defendant Edward believed he worked for
Defendant Avis due to his working at a car rental facility with posted “Avis”
signs, his observation of “Avis” letterheads on vehicle transfer papers, and
his wearing of a uniform bearing the “Avis” logo. Defendant believed Central
Pacific Management Group was a separate entity who only managed his employment
checks. As such, this particular rental facility was one of the rare facilities
independently owned and operated outside of the Avis corporate structure while
continuing to use Avis trademarks.
Plaintiff argues
in opposition that Defendant claims that they recently discovered that Edward
did not work for Avis, however, Defendant was simply dilatory for a year and a
half before deciding to attempt to add another party to the lawsuit and to deny
vicarious liability, and there is simply no plausible explanation in
Defendants' moving papers to explain such a delay. Plaintiff argues that
Defendant simply assumed that vicarious liability applied without researching
the matter. Plaintiff argues he will be prejudiced as trial is set for January
6, 2023. Bringing in another party now, or allowing the Defendant to amend its
discovery and/ or deposition testimony, just two months before trial, unfairly
prejudices Plaintiff.
Here, the record
does not “clearly establish” Defendant’s mistaken belief that he worked for
Avis was inexcusable, as his employer used Avis trademarks, or show the
withdrawal of the Admissions deemed as admitted would substantially prejudice
Plaintiff. (New Albertsons, 168 Cal.App.4th at 1420-21.) Defendant
states that he only recently discovered that Edward did not work for Avis and
the reason for the confusion. This is sufficient to show that both the admission
and deposition testimony was due to mistake, inadvertence, or excusable neglect.
And the record fails to “clearly establish” how withdrawal of
the Admissions deemed as admitted would substantially prejudice
Plaintiff. Trial in this matter is not set until January 6, 2023, which
is almost four months away. Plaintiff will thus be permitted to conduct
additional discovery necessary as to any matter withdrawn or amended in the
Admissions.
As
the California Supreme Court emphasized in Zamora, “the law ‘looks with
[particular] disfavor on a party who, regardless of the merits of his cause,
attempts to take advantage of the mistake, surprise, inadvertence, or neglect
of his adversary.’” (28 Cal.4th at p. 258 [citation omitted].)
Accordingly, Defendant’s motions to amend admissions in Requests
for Admissions, Set One, and to amend erroneous testimony are GRANTED.
Plaintiff is permitted to conduct additional discovery necessary as to any
matter withdrawn or amended in the Admissions and deposition testimony.
B. Motion
to File Cross-Complaint
Defendant also moves for leave to file a
cross-complaint against Defendant’s actual employer, Central Pacific Management
Group, for indemnity, apportionment of fault, contribution and declaratory
relief after discovering Defendant does not work for Avis. Defendant argues
that he should be permitted leave to file his cross-complaint as the
cross-complaint arises out of the same occurrence as the complaint and he acted
in good faith in seeking leave.
The Court finds that the cross-complaint is compulsory
because it arises out of the same occurrence, namely, the vehicle collision.
Thus, there must be substantial evidence that Defendant acted in bad faith to
justify a denial of its motion to file a cross-complaint.
Plaintiff argues in opposition that Defendant should have
filed a cross-complaint against Roe defendants at the time he filed his answer
but failed to do so and has been dilatory.
The Court finds that Plaintiff has not made any argument
or showing of bad faith. Further, the petitioner in Foot's Transfer & Storage Co.
v. Superior Court (1980) 114 Cal.App.3d 897 waited 23 months after service of the complaint, and 16 months after it
had filed its answer to the complaint, before asserting the right to file a
cross-complaint. The court stated that it had “no doubt that petitioner…as defendants
are sometimes wont to do, engaged in as much delay in this litigation as
possible. But section 426.50 however,
expressly mentions a party's “neglect” as one circumstance under which relief
may be given. There is nothing in the record before us which suggests that
petitioner was unusually reprehensible in this regard.” (Foot's Transfer & Storage
Co. v. Superior Court (1980) 114 Cal.App.3d 897.)
As such, the
motion must be granted.
Conclusion
Based on the foregoing, Defendant’s motions to amend
admissions, amend erroneous deposition testimony, and file a cross-complaint
are GRANTED.
Moving party is directed to give notice.