Judge: Serena R. Murillo, Case: 22STCV21786, Date: 2023-03-30 Tentative Ruling
Case Number: 22STCV21786 Hearing Date: March 30, 2023 Dept: 29
TENTATIVE
Defendants Inspired Ventures LLC and Cliff Damavandi’s 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.
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 Advanced Critical Care, Emergency and
Specialty Services – South Bay, for apportionment of fault, indemnification
and/or contribution and declaratory relief, as Critical Care was a tenant of
the property where plaintiff fell, and thus, Defendants contend Critical Care
is liable. The causes of action arise out of the same incident on which
Plaintiff's action is based. Defendants argue they acted in good faith in not
filing its cross-complaint against the proposed Cross-Defendants at the time of
filing their answer to the complaint as they were ignorant of the facts.
The Court finds that the cross-complaint is compulsory
because it arises out of the same occurrence, namely, the alleged 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 Defendants acted in bad faith to justify
a denial of the motion to file a cross-complaint. As no opposition has been
filed, there is no showing or argument of bad faith.
As such, the
motion must be granted.
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.