Judge: Steven A. Ellis, Case: 22STCV33841, Date: 2024-07-31 Tentative Ruling
Case Number: 22STCV33841 Hearing Date: July 31, 2024 Dept: 29
Motion of Defendant Purple Heart Compassion for Leave to
File Cross-Complaint
Tentative
The motion is granted.
Background
On October 19, 2022, Murlin Swanston (“Plaintiff”) filed
a complaint against 1000 Palms Associates (“1000 Palms”), Antonne Dante Adams,
Carmen Guerrero, Raul Vasquez, and Does 1 through 100, for (1) battery, (2)
dependent adult abuse, (3) intentional infliction of emotional distress, (4)
violation of ADA Title III, (5) violation of Unruh Civil Rights Act, (6)
negligence, and (7) negligent hiring, retention, supervision, and/or training
causes of action arising out of an alleged assault and battery with security at
a dispensary.
On November 29, 2022, Plaintiff amended the complaint to
name Purple Heart Compassion, Inc. (“Purple Heart”) as Doe 1.
On July 7, 2023, 1000 Palms filed an answer.
On August 9, 2023, Purple Heart filed an answer. On June 11, 2024, Purple Heart filed an
amended answer.
No other defendants have appeared or been defaulted.
On April 9, 2024, Purple filed this motion for leave to
file a cross-complaint. No opposition has been filed.
The motion was originally scheduled to be heard on July 5
and was continued by the Court.
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 2023], ¶ 6:524.)
Discussion
Purple Heart files this motion for leave to
file a cross-complaint.
The Court notes that there are some
inaccurate statements in the moving papers.
For example, Purple Heart asserts that there is no prejudice because it
has brought this motion “prior to discovery” (Motion, at p. 3:19), but trial is
scheduled for September 25, and thus the discovery cutoff is in less than one
month. As another example, Purple Heart
asserts that it “does not seek to add new parties to this action.” (Motion, at p. 3:25.) But the first named cross-defendant is
Timberwolf Private Security, a non-party.
Nonetheless, the Court grants Purple Heart’s
motion. The proposed cross-complaint is
permissive, and the Court finds that it is in the interests of justice to grant
leave, even if a continuance of the trial date may be necessary. Purple Heart has adequately explained why leave
was not sought earlier and has met the other applicable substantive and
procedural requirements. Plaintiff does
not oppose the motion.
Accordingly, the motion is granted.
Conclusion
The Court GRANTS Purple Heart’s motion for leave to
file its cross-complaint.
The
Court GRANTS Purple Heart leave to file the cross-complaint attached to the
moving papers within 10 days of notice of the hearing on this motion.
Moving
Party to give notice.