Judge: Steven A. Ellis, Case: 22STCV38722, Date: 2023-11-30 Tentative Ruling

Case Number: 22STCV38722    Hearing Date: November 30, 2023    Dept: 29

Tentative

The motion is GRANTED.

Background

On December 13, 2022, Plaintiff Phillip Howell ("Plaintiff") filed suit against City of Los Angeles (“City”), County of Los Angeles (“County”), Hot and Cool Corporation DBA Hot and Cool Café (“Hot and Cool”), Botach Inc. (“Botach”), and Does 1 through 100, for a trip and fall incident on June 19, 2022.  In the Complaint, Plaintiff asserts three causes of action: (1) Liability for Dangerous Condition of Public Property, Pursuant to Government Code section 835 et seq., (2) Negligence, and (3) Premises Liability.

City and Botach filed their Answers on January 18, 2023.

On January 24, 2023, Hot and Cool filed an Answer and a Cross-Complaint against City, County, Botach, and Roes 1 through 10.

On February 7, 2023, Botach filed a Cross-Complaint against Hot and Cool and Moes 1 through 10.

City filed a motion for leave to file cross-complaints on March 3, 2023.  The proposed cross-complaints are against Hot and Cool, Botach, and “Does 1 to POES.”

No party has filed an opposition.

Legal Standard

Code of Civil Procedure § 428.50 provides:

“(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.”

“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.) (Emphasis added.)

The Court of Appeal has explained: “The legislative mandate is clear. A policy of liberal construction of section 426.50 to avoid forfeiture of causes of action is imposed on the trial court. A motion to file a cross-complaint at any time during the course of the action must be granted unless bad faith of the moving party is demonstrated where forfeiture would otherwise result. Factors such as oversight, inadvertence, neglect, mistake or other cause, are insufficient grounds to deny the motion unless accompanied by bad faith.” (Silver Organizations Ltd. v. Frank (1990) 217 Cal.App.3d 94, 98–99.) “‘‘Bad faith,’ is defined as ‘[t]he opposite of ‘good faith,’ generally implying or involving actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake . . ., but by some interested or sinister motive[,] . . . not simply bad judgment or negligence, but rather . . . the conscious doing of a wrong because of dishonest purpose or moral obliquity; . . . it contemplates a state of mind affirmatively operating with furtive design or ill will.  [Citation.]’  [Citations.]’  [Citation.]”  (Id. at p. 100.)

Discussion

City states it did not file a cross-complaint against either Hot and Cool Corporation or Botach Inc through inadvertence. (Motion, 3:14-15; Declaration of Valerie R. Valadez (“Valadez Decl.”), ¶ 7.) City argues in the interests of justice, it be allowed to file its cross-complaint as its claim arises out of the same transaction as the Complaint and the existing cross-complaints, and the proposed cross-defendants are already parties to the action and aware of the issues raised because they have filed their own answers and cross-complaints. (Motion, 4:15-20; Valadez Decl., ¶ 10.)

City seeks to bring its cross-complaints so it has a recourse against the proposed cross-defendants in the event that City is found at all liable for the subject incident. (Motion, 5:3-9.)

City attaches copies of the proposed cross-complaints to its motion. (Valadez Decl., Exhibits A & B.)

The motion is unopposed.

Code of Civil Procedure section 426.50 is liberally construed in favor of granting a motion to file a cross-complaint and must be granted unless the moving party acts in bad faith.  There is no evidence of any bad faith in the record.

Therefore, the Court GRANTS City’s motion for leave to file cross-complaints.

Conclusion

City’s motion to file the two cross-complaint is GRANTED.

City is authorized and directed to file the cross-complaints within 10 days.

Moving party to give notice.