Judge Serena R. Murillo, Case Number: 22STCV16869, Date: 2023-09-20 Tentative Ruling

Judge: Serena R. Murillo, Case: 22STCV16869, Date: 2023-09-20 Tentative Ruling

Case Number: 22STCV16869 Hearing Date: September 20, 2023 Dept: 31

TENTATIVE

Defendant’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.)

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 asserting causes of action for breach of contract and negligence against Defendant, arguing it is a compulsory cross-complaint brought in good faith, and it is in the interest of justice to grant this motion. Defendant in Pro Per inadvertently brought a second action against Plaintiff in error (case number 22STCV24906) after being served with the present action instead of filing a cross-complaint within the 30 days allowed. After consulting with alternative counsel, Defendant was persuaded to move forward with this motion and dismiss the second action.

The Court finds that the cross-complaint is compulsory because it arises out of the same or a series of transactions, namely, an agreement to sell a residential property (the Golden Gate property) between the same parties. 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 that Defendant requests leave to file a Cross-Complaint on the verge of trial, even though Code of Civil Procedure section 428.50 requires that Cross Complaint be filed concurrently with the Answer. Plaintiff argues that Defendant, who is pro per, is acting in bad faith because she has not filed a declaration.

However, a late filing of a motion for leave to file a compulsory cross-complaint is not sufficient to support denial of the motion absent some evidence of bad faith. A finding of bad faith requires evidence of “dishonest purpose, moral obliquity, sinister motive, furtive design, or ill will.” (Silver Orgs, supra, 217 Cal.App.3d at p. 100.) Evidence of oversight, inadvertence, neglect, or mistake is, by itself, insufficient to establish bad faith. (Id. at 99; see Code Civ. Proc., § 426.50.) The Court finds that there has been no showing of bad faith. 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.)

Moreover, Defendant explains that she inadvertently brought a second action against Plaintiff in error in case number 22STCV24906 after being served with the present action instead of filing a cross-complaint within the 30 days allowed. After consulting with alternative counsel, Defendant was persuaded to move forward with this motion and dismiss the second action. The Court finds the worst Defendant may be charged with is neglect, but there is no evidence of bad faith.

As such, the motion must be granted.

Moreover, any other pleading issues Plaintiff takes against the cross-complaint should be reserved for a demurrer.

Conclusion

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

Moving party is ordered to give notice.