Judge: Steven A. Ellis, Case: 21STCV20106, Date: 2024-10-28 Tentative Ruling

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Case Number: 21STCV20106    Hearing Date: October 28, 2024    Dept: 29

Townsend v. City of Los Angeles
21STCV20106
Defendant’s Motion for Leave to File Cross-Complaint

Tentative

The motion is granted.

Background

On May 28, 2021, Helena Townsend (“Plaintiff”) filed a complaint against City of Los Angeles (“Defendant”) and Does 2 through 50, asserting causes of action for general negligence and premises liability arising out of an alleged trip and fall occurring on June 2, 2019 near 7350 Melrose Avenue in Los Angeles.

By order filed November 21, 2022, Defendant’s answer was deemed filed.

On June 15, 2023, Plaintiff amended the complaint to name Amzalag Investments, LLC (“Amzalag”) as Doe 1.

On August 14, 2023, Amzalag filed an answer.  On the same day, Amzalag filed a cross-complaint against Defendant and Roes 1 through 50.

On September 15, 2023, Defendant filed an answer to Amzalag Investments, LLC’s cross-complaint.

On March 4 and 12, 2024, dismissals were entered as to the causes of action in the complaint against Amzalag and as to Amzalag’s cross-complaint.

On October 3, 2024, Defendant filed this motion for leave to file a cross-complaint against Love Baked Wings LLC and Love Baked Wings Melrose LLC (“Proposed Cross-Defendants”).

No opposition has been filed.

Legal Standard

The Code of Civil Procedure distinguishes between compulsory and permissive cross-complaints.

A compulsory cross-complaint, under Code of Civil Procedure section 426.30, is one that asserts (1) a “related cause of action”; (2) that a party against whom a “complaint” has been filed and served has against the “plaintiff”; and (3) that exists as of the time the answer to the “complaint” is served. (Code Civ. Proc., § 426.30, subd. (a).)

As used in section 426.30, a “related cause of action” is defined as “a cause of action which arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint.” (Code Civ. Proc., § 426.10, subd. (c).) “Complaint” is defined to include a cross-complaint, and “Plaintiff” is defined as “a person who files a complaint or cross-complaint.” (Id., subds. (a) & (b).)

Subject to the exceptions set forth by statute, if a party fails to assert fails to assert a related cause of action against the plaintiff that exists as of the time the party answers the complaint, “such party may not thereafter in any other action assert against the plaintiff the related cause of action not pleaded.” (Code Civ. Proc., § 426.30, subd. (a).)

A permissive cross-complaint, in contrast, may include a much broader group of pleadings. Under Code of Civil Procedure section 428.10, in a permissive cross-complaint a party may assert an unrelated cause of action “against any of the parties who filed the complaint or cross-complaint against him.” (Code Civ. Proc., § 428.10, subd. (a).) Alternatively, in a permissive cross-complaint a party may assert a “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.” (Id., subd. (b).) Cross-complaints for contribution or indemnity against new parties fall within the definition of a permissive cross-complaint in section 428.10.

A party must file a compulsory cross-complaint at the same time as (or before) the answer to the complaint. (Code Civ. Proc., § 426.30, subd. (a).) If a party fails to do so, and then later on seeks leave to file the cross-complaint, the court “after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to amend the pleading, or to file the cross-complaint, to assert such cause if the party who failed to plead the cause acted in good faith.” (Code Civ. Proc., § 426.50.) The “good faith” standard must “be liberally construed to avoid forfeiture of causes of action.” (Ibid.)

A party must file a permissive cross-complaint before the court has set a date for trial, or, if the causes of action in the cross-complaint are asserted against “any of the parties who filed the complaint or cross-complaint against him or her,” at or before the party files the answer to the complaint or cross-complaint. (Code Civ. Proc., § 428.50, subds. (a) & (b).) If a party fails to do so, and then later on seeks leave to file the cross-complaint, the court may grant leave “in the interests of justice.” (Id., subd. (c).)

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 2024], ¶ 6:524.)

Discussion

Defendant seeks leave to file a permissive cross-complaint against Proposed Cross-Defendants. Defendant states that it failed to file the cross-complaint sooner due to inadvertence, mistake, surprise, and excusable neglect. (Van Deerlin Decl., ¶ 6.)

Defense counsel argues the Proposed Cross-Defendants exercised control over the walkway were Plaintiff tripped as Proposed Cross-Defendants provide outdoor dining to its customers in the public’s right of way. (Id.) Defendant contends it was not aware of Proposed Cross-Defendants possible liability until September 2024, when Defendant’s liability expert inspected the location and noted a lack of permit for Cross-Defendants. (Id., ¶ 7.) Defendant states that it was unaware of Proposed Cross-Defendants’ occupying the sidewalk at the time of filing its answer. (Id., ¶ 5.)

Defendant has attached a copy of the proposed cross-complaint. (Exh. A.)

Defendant has satisfied all of the procedural requirements for the motion.  The Court finds that as the Defendant’s proposed cross-complaint arises out of the same set of facts as Plaintiff’s complaint, granting leave to file the proposed cross-complaint is in the interest of justice.  Accordingly, the motion is granted.

Conclusion

The Court GRANTS the motion of Defendant City of Los Angeles for leave to file its cross-complaint.

The Court GRANTS Defendant LEAVE to file the cross-complaint attached to the moving papers within 7 days of the hearing.

Moving Party to give notice.