Judge: Steven A. Ellis, Case: 21STCV44719, Date: 2023-07-21 Tentative Ruling

Case Number: 21STCV44719    Hearing Date: July 21, 2023    Dept: 29

TENTATIVE

            Defendant’s motion for leave to file a Cross-Complaint is GRANTED.

Legal Standard

            CCP § 428.50 states, “(a) A party shall file a cross-complaint against any of the parties who filed the complaint or cross-complaint against him or her before or at the same time as the answer to the complaint or cross-complaint.

            (b)  Any other cross-complaint may be filed at any time before the court has set a date for trial.

            (c)  A party shall obtain leave of court to file any cross-complaint except one filed within the time specified in subdivision (a) or (b).  Leave may be granted in the interest of justice at any time during the course of the action.”

            “If the proposed cross-complaint is permissive . . ., leave of court may be granted ‘in the interest of justice’ at any time during the course of the action (CCP §428.50(c)).  On the other hand, if the proposed cross-complaint is compulsory . . ., leave must be granted so long as defendant is acting in good faith (CCP §426.50 . . .).”  (Weil & Brown, Civ. Proc. Before Trial, ¶ 6:555.) 

            “The declarations of defendant’s counsel should show that it would be ‘in the interest of justice’ to grant leave to file; and some reasonable excuse why the cross-complaint was not filed earlier (mistake, inadvertence, excusable neglect . . . or most commonly, recent discovery of new facts).”  (Id., at ¶ 6:562.)

            “A greater showing of ‘interest of justice’ is required to obtain leave to file a cross-complaint against a codefendant or some third person not yet a party to the action.  Here, the court will be concerned that the cross-complaint not unreasonably burden and complicate plaintiff’s lawsuit with cross-actions and third parties.”  (Id., at ¶ 6:564.)

Discussion

            Here, Defendant seeks to file a Cross-Complaint against The Thalians and against Jimmy Carnelli Music & Entertainment for various causes of action including Equitable Indemnity, Implied Indemnity, Apportionment, Contribution, Total Indemnity, and Declaratory Relief, all relating to the alleged claims against Defendant in Plaintiffs' operative Complaint.

            Defendant represents that based upon recent discovery and investigation, Plaintiffs' believe that they tripped over a cable while dancing as a couple. Although they did not actually see a cable, Plaintiff Everling testified that he felt a cable-like object that he tripped over, causing both Plaintiffs to fall to the floor. Defendant now believes it most probably was that used and installed by The Thalians and/or Jimmy Carnelli Music & Entertainment.

            Based on the foregoing, the Court finds that the proposed Cross-Complaint arises out of the same incident that is at issue in the Complaint, that it would be in the interest of justice to allow Defendant to file a Cross-Complaint as it pertains to their liability in the instant action, and Defendant has shown a reasonable excuse for not filing it earlier as they just recently discovered the facts giving rise to the claims. Defendant has also filed the required declaration evidencing such. (See Endelicato Decl.)

            Accordingly, the unopposed motion is GRANTED.

Conclusion

            Defendant’s motion for leave to file a Cross-Complaint is GRANTED.

            Defendant to give notice.