Judge: Steven A. Ellis, Case: 21STCV36191, Date: 2024-01-03 Tentative Ruling

Case Number: 21STCV36191    Hearing Date: January 3, 2024    Dept: 29

Tentative

The motion for leave to file a cross-complaint is GRANTED.

Background

On September 30, 2021, Plaintiff Karen Mouton (“Plaintiff”) filed the Complaint in this action against Defendants Ladera Heights Condominiums, inc., HOA Made Easy Management Company, Rubin Properties, Inc., Ross Morgan & Company, Inc. (collectively, “Defendants”), and Does 1 through 50, inclusive, asserting causes of action for (1) Nuisance, (2) Breach of Contract, (3) Negligence, and (4) Premise Liability, regarding alleged damage to her property.

On July 18, 2022, Defendants filed their Answer to the Complaint.

On November 29, 2023, Defendants filed this motion for leave to file a Cross-Complaint against two contractors (and additional fictitiously named cross-defendants) who allegedly caused or contributed in some way to the alleged damage.

No opposition has been filed.

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).) 

Discussion

Defendants seek to file a cross-complaint against Ace Roofing Group, Inc., Titan Roofing & Decking Co., Inc., and Roes 1 through 25. (Szymanski Decl., ¶ 4.) The proposed Cross-Complaint asserts causes of action for (1) Indemnity, (2) Contribution, and (3) Declaratory Relief. (Id.) Defendants argue that these causes of action arise out of the same incident as the claims asserted in the Complaint. (Id., ¶ 5.) Defendants state that they did not bring this motion earlier as the parties were mediating and attempting to settle the case. (Id., ¶ 6.)

Defendants include a copy of the Cross-Complaint with their filing. (Id., ¶ 7; Exhibit A.)

The claims asserted in the proposed Cross-Complaint appear to arise out of the same facts and incidents as the claims in the Complaint.  Granting this motion, and trying the Complaint and proposed Cross-Complaint in a single proceeding, would appear to promote efficiency for the parties and the Court.

The Court is concerned that granting the motion may require a continuance of the trial, but the Court notes that Plaintiff was served with the motion and did not file any opposition to it.  Accordingly, it appears that Plaintiff is not concerned about any undue or unfair prejudice to her from the granting of this motion and the filing of the proposed Cross-Complaint.

After having considered the evidence, the argument, and all of the relevant facts and circumstances, the Court exercises its discretion to GRANT the motion.

Conclusion

The Court GRANTS Defendants’ motion for leave to file the proposed Cross-Complaint.

Defendants are given leave to file the proposed Cross-Complaint attached to the moving papers within 14 days of notice of this ruling.

The Court directs Defendants and Plaintiff (and the named entities in the Cross-Complaint once they are served) to meet and confer about the trial date and whether any continuance is needed.  If an agreement to continue the trial date is reached, the parties should promptly file a stipulation and proposed order that sets forth good cause for the requested continuance.

Moving Parties are ordered to give notice.