Judge: Serena R. Murillo, Case: 22STCV14206, Date: 2023-04-12 Tentative Ruling
Case Number: 22STCV14206 Hearing Date: April 12, 2023 Dept: 29
TENTATIVE
Defendants’ motion for
leave to file a cross-complaint is GRANTED.
Defendants are ordered to file and serve the
proposed-cross complaint (attachment 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
Defendants
move to file a cross-complaint against Plaintiff Younis for indemnity,
comparative fault and declaratory relief. Defendants argue that upon further review
of the traffic collision report produced in the underlying claim file, it
appears Plaintiff Younis' vehicle proceeded to drive through the subject
intersection through a yellow light, rather than yielding to stop while it
turned red. Therefore, there is also liability attributable to Plaintiff Younis
for both injuries to his passenger, Plaintiff Marlene Vargas and Defendant's
passenger, Ms. Jimenez. Further, Defendant Jonathan Marquez's passenger at the
time of the Incident, Ms. Jimenez, has alleged injuries related to the motor
vehicle collision but has yet to file a separate action related to this
Incident. Thus, any liability and resulting damages to Ms. Jimenez and to
Plaintiff Marlene Vargas may be properly apportioned to potentially both
Defendants and Plaintiff Younis.
The Court finds that the cross-complaint is compulsory
because it arises out of the same occurrence, namely, the vehicle 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 the motion to file a cross-complaint.
Plaintiff has filed an opposition but has not argued
there was any bad faith. As such, the motion must be granted.
Plaintiff argues in
opposition that Jimenez has
not yet filed a separate action related this incident, and thus, the proposed
Cross-Complaint does not state any valid claims against Plaintiff Younis. However, the proposed cross-complaint for
indemnity is not just for Jimenez’s potential claims, but also for Plaintiffs’
claims against Defendant. Thus, this argument is unavailing. Moreover, any
other pleading issues Plaintiffs take against the cross-complaint should be
reserved for a demurrer.
Conclusion
Therefore, Defendants’ motion for leave to file a cross-complaint
is GRANTED.
Defendants are ordered to file and serve the
proposed-cross complaint within 30 days of the hearing on this motion.
Moving
party is ordered to give notice.