Judge: Steven A. Ellis, Case: 21STCV42289, Date: 2024-01-25 Tentative Ruling
Case Number: 21STCV42289 Hearing Date: January 25, 2024 Dept: 29
Motion for Leave to File Cross-Complaint and to Continue Trial filed by Caliber Paving Company.
Tentative
The Court GRANTS Caliber’s motion for leave to file a cross-complaint.
The Court GRANTS Caliber’s motion to continue trial.
Background
This case arises out of an alleged slip and fall on December 4, 2019, at a grocery store on Ventura Boulevard in Tarzana. On November 16, 2021, Plaintiff Sergey Tsoi (“Plaintiff”) filed the Complaint in this action asserting causes of action for negligence and premises liability against Defendants The Vons Companies, Inc. (“Vons”), Safeway Inc. (“Safeway”), Ennis-Flint, Inc. (“Ennis-Flint”), Dawn Doe, and Does 1 through 50.
On August 30, 2022, Vons filed its Answer to the Complaint and a Cross-Complaint for declaratory relief and equitable indemnity against Ennis-Flint, Caliber Paving Company, Inc. (“Caliber”), and Roes 1 through 10. Caliber filed its Answer to the Cross-Complaint on December 2, 2022.
On January 5, 2023, Plaintiff amended his complaint to name Caliber as Doe 1. Caliber filed its Answer to the Complaint on February 17, 1023.
On October 6, 2023, the Court, at the request of Plaintiff, dismissed the claims in the Complaint against Safeway without prejudice.
Trial is currently set for April 8, 2024.
On December 28, 2023, Caliber filed this motion for leave to file a cross-complaint and to continue the trial date. The proposed cross-complaint asserts claims for declaratory relief, equitable indemnity, and express indemnity against Vons and Moes 1 through 20. The requested continuance is based on a motion for summary judgment that Caliber plans to file, but has not yet filed; Caliber has reserved a hearing date of April 29, 2024 for its motion.
Vons filed an opposition to the motion on January 10. Caliber filed a reply on January 18.
Legal Standard
Motion for Leave to File a Cross-Complaint
“A party against whom a cause of action has been asserted in a complaint or cross-complaint may file a cross-complaint setting forth … [a]ny cause of action he has against any of the parties who filed the complaint or cross-complaint against him.” (Code Civ. Proc., § 428.10 & subd. (a).) Such a cross-complaint may generally be filed as of right “before or at the same time as the answer to the complaint or cross-complaint.” (Code Civ. Proc., § 428.50, subd. (a).) A party seeking to file a cross-complaint at a later date must obtain leave of the court. (Id., subd. (c).) “Leave may be granted in the interest of justice at any time during the course of the action.” (Ibid.)
Cross-complaints may be compulsory or permissive. “[I]f a party against whom a complaint [or cross-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 [or cross-complainant] the related cause of action not pleaded.” (Code Civ. Proc., § 426.30, subd. (a).) In other words, the cross-complaint is compulsory. 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 [or cross-complainant] alleges in his complaint [or cross-complaint].” (Code Civ. Proc., § 426.10, subd. (c).
With regard to compulsory cross-complaints, the Legislature has provided:
“A party who fails to plead a cause of action subject to the requirements of this article, whether through oversight, 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. 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. This subdivision shall be liberally construed to avoid forfeiture of causes of action.”¿ (Code Civ. Proc., § 426.50.)
Other cross-complaints are permissive. Requests for leave to file permissive cross-complaints are evaluated under the broad, and largely discretionary, “interests of justice” test. (Code Civ. Proc., § 428.50, subd. (c); Crocker Nat’l Bank v. Emerald (1990) 221 Cal.App.3d 852, 864.)
Motion to Continue Trial
Code of Civil Procedure section 128, subdivision (a)(8), provides that the court has the power to amend and control its process and orders so as to make them conform to law and justice. “The power to determine when a continuance should be granted is within the discretion of the trial court.” (Color-Vue, Inc. v. Abrams (1996) 44 Cal.App.4th 1599, 1603.) “A trial court has wide latitude in the matter of calendar control including the granting or denying of continuances.” (Park Motors, Inc. v. Cozens (1975) 49 Cal.App.3d 12, 18.)
Each request for a continuance must be considered on its own merits. (Cal. Rules of Court, rule 3.1332(c).) The court may grant a continuance only on an affirmative showing of good cause. Circumstances that may indicate good cause include:
“(1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances;
(2) The unavailability of a party because of death, illness, or other excusable circumstances;
(3) The unavailability of trial counsel because of death, illness, or other excusable circumstances;
(4) The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice;
(5) The addition of a new party if: (A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or (B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party's involvement in the case;
(6) A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or
(7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.”
(Cal. Rules of Court, rule 3.1332(c).)
California Rules of Court, rule 3.1332(d) sets forth a list of non-exhaustive factors to be analyzed when determining whether good cause for a trial continuance is present. A court may consider factors such as:
“(1) The proximity of the trial date;
(2) Whether there was any previous continuance, extension of time, or delay of trial due to any party;
(3) The length of the continuance requested;
(4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance;
(5) The prejudice that parties or witnesses will suffer as a result of the continuance;
(6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay;
(7) The court's calendar and the impact of granting a continuance on other pending trials;
(8) Whether trial counsel is engaged in another trial;
(9) Whether all parties have stipulated to a continuance;
(10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and
(11) Any other fact or circumstance relevant to the fair determination of the motion or application.”
(Cal. Rules of Court, rule 3.1332(d).)
“A trial court may not refuse to hear a summary judgment motion filed within the time limits of section 437c.” (Sentry Ins. Co. v. Superior Court (1989) 207 Cal.App.3d 526, 529; accord Cole v. Superior Court (2022) 87 Cal.App.5th 84, 88.)
Discussion
Motion for Leave to File a Cross-Complaint
Caliber seeks leave to file a cross-complaint against Vons. From the moving papers, it is unclear whether Caliber contends that its proposed cross-complaint is compulsory or permissive, as Caliber cites case law and statutory authority involving both compulsory and permissive cross-complaints. In its reply, however, Caliber states unequivocally (on page 3) its position that the proposed cross-complaint is compulsory.
The proposed cross-complaint involves claims for indemnity and declaratory relief for the accident at issue. These causes of action arise out of the same “transaction” or “occurrence” as the causes of action which Vons asserts against Caliber in its cross-complaint (filed in August 2022). (Code Civ. Proc., § 426.10, subd. (c). Thus, Caliber’s proposed cross-complaint appears to be compulsory.
There is no evidence sufficient to support a finding that Caliber has acted in bad faith. Accordingly, the Court must grant Caliber’s motion for leave to file its proposed cross-complaint and thereby avoid forfeiture of causes of action.¿ (Code Civ. Proc., § 426.50.)
Moreover, even if Caliber’s proposed cross-complaint were permissive, the Court would still exercise its discretion to grant Caliber leave to file it. The claims in Caliber’s cross-complaint are in certain respects a mirror image of the claims in Vons’ cross-complaint against Caliber, and in any event the interests of judicial economy and efficiency are served by resolving all of the competing claims of responsibility for Plaintiff’s alleged injuries in a single proceeding.
To the extent that Vons contends that Caliber’s cross-complaint injects new issues into the proceeding (such as contractual indemnity), Vons may of course seek a reasonable continuance of trial to conduct additional discovery. A continuance, rather than forcing Caliber to file a separate action (and then possibly attempt to relate and ultimately consolidate the two actions), will best allow for the orderly resolution of the various claims and defenses of the parties.
The motion for leave to file a cross-complaint is GRANTED.
Motion to Continue Trial
Caliber also requests a brief continuance of trial so that its summary judgment motion may be heard. No party opposes this request. The Court finds that Caliber has made an adequate showing of good cause for its requested continuance. And, indeed, a continuance may also help address the concerns expressed by Vons in regard to the proposed cross-complaint.
The motion to continue trial is GRANTED.
Conclusion
The Court GRANTS Caliber’s motion for leave to file a cross-complaint.
The Court GRANTS Caliber leave to file the cross-complaint attached to the moving papers within 14 days.
The Court GRANTS Caliber’s motion to continue trial.
The Court advances and continues the trial date to a date in mid June 2024. The Final Status and all deadlines are reset based on the new trial date.
Final Status Conference is continued to 05/30/2024 at 10:00 AM in Department 29 at Spring
Street Courthouse. Non-Jury Trial is continued to 06/13/2024 at 08:30 AM in Department 29 at
Spring Street Courthouse.
Moving party is ordered to give notice.