Judge: Serena R. Murillo, Case: 21STCV34650, Date: 2023-04-17 Tentative Ruling
Case Number: 21STCV34650 Hearing Date: April 17, 2023 Dept: 29
TENTATIVE
Defendant’s unopposed motion for
leave to file a cross-complaint is GRANTED.
Defendant is ordered to file and serve the proposed cross-complaint
attached as Exhibit A 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
Defendant
moves to file a cross-complaint. Defendant argues it has
recently been able to confirm, via video surveillance of the incident and
subsequent review of relevant Service Agreements, that its security services
vendor, Single Source Security, Inc. dba Protos Security (“Protos”), was providing
security services at the subject location the date of the alleged incident and
was in the specific proximity of the incident at or around the time the
incident occurred. Consequently, Defendant has prepared a Cross-Complaint
against Protos and anticipates that there may be an additional subcontractor
who will be a necessary party once it is identified in written discovery to
Protos. The Cross-Complaint alleges causes of action for: (1) Comparative
Indemnity and Apportionment of Fault; (2) Total Equitable Indemnity; (3)
Declaratory Relief; (4) Contractual Indemnity as to Protos; (5) Breach of
Contract as to Protos; (6) Declaratory Relief - Duty to Defend as to Protos;
and (7) Declaratory Relief – Duty to Indemnify as to Protos.
The Court finds that the cross-complaint is compulsory
because it arises out of the same occurrence, namely, the slip and fall 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 Defendant acted in bad faith to justify a
denial of the motion to file a cross-complaint.
No party has opposed this motion, and thus have not
produced any argument or evidence of bad faith.
Therefore, the motion must be granted.
The request to continue trial is moot, as a continuance was
granted by ex parte relief on September 30, 2022.
Conclusion
Accordingly, Defendant’s motion for leave to file a cross-complaint
is GRANTED.
Defendant is ordered to file and serve the proposed-cross
complaint attached as exhibit A within 30 days of the hearing on this motion.
Moving
party is ordered to give notice.