Judge: Steven A. Ellis, Case: 19STCV38337, Date: 2023-08-17 Tentative Ruling
Case Number: 19STCV38337 Hearing Date: September 15, 2023 Dept: 29
TENTATIVE
The motion is DENIED.
Background
On October 23, 2019, Plaintiff Joana
Gallegos (“Plaintiff”) filed this action for negligence and premises liability
for injuries arising from a slip and fall accident against Defendants Costco
Wholesale Corporation and Russell Lee.
Defendants answered the complaint on December
12, 2019. Their motion for summary judgment was denied on October 28, 2021
(after a prior ruling denying the motion was vacated).
The matter has been set for trial several
times. The parties filed extensive trial documents for the trial date of October
21, 2022, but at the Final Status Conference on October 7 the trial was
continued to February 14, 2023. On motion of Plaintiff, trial was continued
again to the current date of October 9, 2023.
On August 8, 2023, Defendant Costco
Wholesale Corporation (“Defendant” or “Costco”) filed this motion for leave to
file a cross-complaint alleging four causes of action for (1) contractual
express indemnity, (2) implied indemnity, (3) contribution, and (4) declaratory
relief against F. Gavina & Sons dba Gavina Coffee (“Gavina Coffee”).
Defendant alleges that at the time of the accident, Plaintiff was working as an
employee of Gavina Coffee.
Plaintiff filed an opposition on September
1. Defendant filed a reply on September 8.
Legal
Standard
“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 a person is already 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.” (Code Civ. Proc., § 428.10.)
When a party seeks to file a cross-complaint against a person or entity
that is not already a party in the case, and a date for trial has already been
set, the party seeking to file the cross-complaint must obtain leave of the
court. (Code Civ. Proc., § 428.50.)
Code of Civil Procedure section 428.50, subdivision (c), provides that
leave to file such a cross-complaint “may be granted in the interest of justice
at any time during the course of the action.”
Discussion
Defendant moves to file a cross-complaint alleging four causes of action
for (1) contractual express indemnity, (2) implied indemnity, (3) contribution,
and (4) declaratory relief against Gavina Coffee. Gavina Coffee is not
currently a party in this action.
As a threshold matter, the parties dispute whether the proposed
cross-complaint is permissive or compulsory. If it is a compulsory cross-complaint,
the “good faith” standard of Code of Civil Procedure section 426.50 applies. If
it is permissive, the “interest of justice” standard set forth in Code of Civil
Procedure section 428.50, subdivision (c), governs.
Here, the proposed cross-complaint is plainly permissive, not compulsory.
Compulsory cross-complaints involve only related causes of action against the existing
parties in an action. (See Code Civ. Proc., § 426.30, subd. (a) [“if a party against
whom a complaint has been filed and served fails to allege in a cross-complaint
any related cause of action which (at the time of serving his answer to the
complaint) he has against the plaintiff, such party may not thereafter in any
other action assert against the plaintiff the related cause of action not
pleaded”].) Cross-complaints against a person or entity that is not already a
party in the action are always permissive, rather than compulsory. (Insurance
Co. of North America v. Liberty Mutual Ins. Co. (1982) 128 Cal.App.3d 297,
303; 1 Weil & Brown, California Practice Guide: Civil Procedure Before
Trial [The Rutter Group 2023], ¶ 6:524.) Thus, the “interest of justice” standard
applies.
Defendant argues that allowing the filing of the proposed cross-complaint
is in the interest of justice as its claims against Gavina Coffee arise out of
the same incident (Plaintiff’s alleged fall in Defendant’s store). Defendant
argues (among other things) that the interests of efficiency and judicial
economy would be served by allowing the resolution of the claims in the
complaint and in the proposed cross-complaint in a single proceeding.
Given the liberal policy in allowing amended pleadings and
cross-complaints and the close relationship between the claims in the complaint
and those in the proposed cross-complaint, the Court would ordinarily exercise
its discretion to grant leave and allow the filing of the proposed
cross-complaint against Gavina Coffee.
But this is not an ordinary case. The case was filed more than four years
and nine months ago, and trial is scheduled to begin in less than a month. Adding
a new party at this late date, on the eve of trial, would almost certainly
require yet another continuance; this would lead to further delays and expenses
for Plaintiff, to her detriment and prejudice.
Moreover, Defendant has known about its potential claims against Gavina
Coffee for years. In 2021, when Defendant filed its motion for summary
judgment, Defendant stated that it was aware that Plaintiff was an employee of
Gavina Coffee and that she was acting within the scope of her employment at the
time of the accident. (Landver Decl., ¶ 8 [citing summary judgment filings].) According
to Defendant’s own counsel, Defendant has “repeatedly tendered its defense and
sought indemnity from Gavina Coffee.” (Angelo Decl., ¶ 4.) Gavina Coffee “refused
to accept Costco’s tender or agree to indemnify Costco in connection with
Plaintiff’s suit.” (Id., ¶ 5.) Defendant’s counsel further states that “Costco
delayed bringing this motion because it preferred not to commence an action
against a current Vendor and because ongoing and active discussions between
counsel for the parties seemed to be progressing.” (Id., ¶ 6.) In other words,
Defendant was aware of its claims against Gavina Coffee for a substantial
period of time but chose to delay in asserting them for business reasons.
Under these unusual circumstances, in which the prejudice to Plaintiff is
clear and the delay in seeking the relief is wholly the result of Defendant’s intentional
business decisions, the Court finds that it would not be in the interests of
justice to grant the relief requested by Defendant. Plaintiff should not be
required to wait any longer to have her claims resolved. And, because this is a
permissive cross-complaint, not a compulsory one, Defendant may (if it chooses)
pursue its claim against Gavina Coffee in a separate proceeding.
Conclusion
Defendant’s
motion for leave to file a cross-complaint against non-party Gavina Coffee is DENIED.
Moving party
is ordered to give notice.