Judge: Steven A. Ellis, Case: 23STCV07582, Date: 2024-11-12 Tentative Ruling
Case Number: 23STCV07582 Hearing Date: November 12, 2024 Dept: 29
Alas v. Ono Hawaiian BBQ
23STCV07582
Motion of Defendant 3010 S. Figueroa, LLC for Leave to File Cross-Complaint
Background
On April 6, 2023, Gianella Alas (“Plaintiff”) filed a
complaint against Ono Hawaiian BBQ, Inc. (“Ono”), 3010 S. Figueroa, LLC
(“Figueroa”), and Does 1 through 50, asserting causes of action for general
negligence and premises liability arising out of an alleged trip and fall on
April 14, 2021.
On October 24, 2023, Ono filed an answer and a cross-complaint
against Figueroa and Roes 1 through 20.
On January 5, 2024, Figueroa filed an answer to
Plaintiff’s complaint and Ono’s cross-complaint.
On June 28, 2024, Ono amended its cross-complaint to name
G.E. Property Management, Inc. as Roe 1.
On October 10, 2024, Figueroa filed this motion for leave
to file a cross-complaint against Ono and Zoes 1 through 20.
No opposition has been filed.
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 2024], ¶ 6:524.)
Discussion
Figueroa seeks leave to file a
cross-complaint against Ono for equitable and express indemnity. Figuroa
attaches a copy of the proposed cross-complaint to its motion. (Exh. A.)
Figueroa argue that the Court must grant this
motion as it is a compulsory cross-complaint and acted in good faith. Figueroa
contends that it did not previously brings this motion as the specific facts
were unknown, but through the course of discovery, it became evident a
cross-complaint was required. (Motion, 5:28-6:3.)
Neither Plaintiff nor Ono have filed an
opposition to this motion.
The Court finds Figueroa’s proposed
cross-complaint arises out of the same set of facts as Plaintiff’s complaint,
as it relates to the cause and control of the area where Plaintiff tripped. Further,
the Court finds that Figueroa has acted in good faith.
Accordingly, the motion is granted.
Conclusion
The Court GRANTS the motion of 3010 S.
Figueroa, LLC for leave to file its cross-complaint.
The
Court GRANTS Defendant 3010 S. Figueroa, LLC LEAVE to file the cross-complaint
attached to the moving papers within 7 days of the hearing.
Moving
Party to give notice.