Judge: Steven A. Ellis, Case: 22STCV32697, Date: 2024-04-23 Tentative Ruling

Case Number: 22STCV32697    Hearing Date: April 23, 2024    Dept: 29

Motion for Leave to File Cross-Complaint from Defendants Rosegarden Center, LLC and Westridge Commercial, Inc.

Tentative

The hearing on the motion is continued.

Background

On October 5, 2022, Randy Gill (“Plaintiff”) filed a complaint against Dhillon Foods, Inc. dba Jack in the Box (“Dhillon”), Rosegarden Center, LLC (“Rosegarden”), Westridge Commercial, Inc. (“Westridge”), and Does 1 through 25, asserting causes of action for premises liability and general negligence arising from a fall on July 18, 2022, that allegedly resulted from a negligently maintained railing at premises operated by Defendants on West Rosecrans Avenue in Gardena. 

On March 27, 2023, Dhillon Foods filed an answer and a cross-complaint against Roes 1 through 15.

On March 30, 2023, Rosegarden and Westridge filed an answer.

On December 12, 2023, Rosegarden and Westridge filed a cross-complaint against Dhillon and Roes 1 through 20.

On January 9, 2024, Rosegarden and Westridge filed this motion for leave to file a cross-complaint.  The moving papers do not include a copy of the proposed cross-complaint.

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).) 

If a cross-complaint is compulsory, leave must be granted as long as the cross-complainant is acting in good faith, so as to avoid forfeiture of the causes of action. (C.C.P. §426.50; See Silver Organizations, Ltd. v. Frank (1990) 217 Cal.App.3d 94, 101 (concluding that the late filing of the motion to file a compulsory cross-complaint absent some evidence of bad faith is insufficient evidence to support denial of the motion).) To be considered a compulsory cross-complaint, the related cause of action must have existed at the time defendant served its answer to the complaint. (Weil & Brown, California Practice Guide (2008), Civil Procedure Before Trial §6:516; See also Crocker Nat’l Bank v. Emerald (1990) 221 Cal.App.3d 852, 864.) If the cross-complaint is not compulsory, but rather is permissive, the Court has sole discretion whether to grant or deny leave. (Id.)

Discussion

Rosegarden and Westridge seek leave to file a cross-complaint.  In their notice of motion and motion, and in paragraph 6 of counsel’s declaration, they state that a copy of the proposed cross-complaint is attached to the moving papers.  It is not.

Without reviewing the proposed pleading, the Court is unable to determine whether the causes of action asserted in the pleading (for example) arise out of the same transaction or occurrence as the causes of action that are already before the Court in this action. 

The Court recognizes that the motion might possibly relate to the cross-complaint that was filed (without leave) on December 12.  Or possibly not.  But at this point the Court lacks sufficient information to rule on the motion (and the other parties lack sufficient information to make a decision with regard to whether to oppose the motion).

Accordingly, the Court continues the hearing on this motion for approximately 21 days.  The Court also directs moving party to meet and confer with the other counsel to see whether a stipulation to permit the filing may be obtained.

Conclusion

The Court CONTINUES the hearing on the motion for leave to file a cross-complaint for approximately 21 days.

The Court ORDERS moving party to file and serve a declaration from counsel attaching the proposed cross-complaint by no later than April 30, 2024.

Moving Party to give notice.