Judge: Steven A. Ellis, Case: 23STCV07907, Date: 2024-06-26 Tentative Ruling

Case Number: 23STCV07907    Hearing Date: June 26, 2024    Dept: 29

Motion for Leave to File Cross-Complaint of Defendant Linda McLean.

Tentative

The hearing on the motion is CONTINUED.

Background

On April 10, 2023, Calvin Haugen (“Plaintiff”) filed a complaint against Rochelle Linnetz (“Linnetz”), Linda McLean (“McLean”), and Does 1 through 50 for common law negligence and statutory liability under Civil Code section 3342 arising out of a dog bite incident occurring on April 14, 2021.  Plaintiff alleges that Linnetz owned the dog that bit him and that McLean owned the property on which the incident occurred.

Linnetz filed her answer on February 23, 2024.  Linnetz is representing herself, in pro per.

McLean filed her answer on February 27, 2024.

On April 2, 2024, McLean filed this motion for leave to file a cross-complaint against Linnetz.

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, is much broader.  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 co-defendants generally 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).)

Discussion

McLean contends good causes exist for leave to file a cross-complaint against co-Defendant Linnetz for contribution, indemnity, and declaratory relief.

The proposed cross-complaint arises out of the same set of facts as Plaintiff’s complaint.  Nonetheless, the Court cannot grant the motion at this time because of a procedural reason: Linnetz has answered the complaint and appeared in this action, but she was not served with this motion.

Accordingly, the hearing is continued for approximately 30 days so that McLean may serve Linnetz and Linnetz may have the opportunity to be heard.

Conclusion

Accordingly, the Court CONTINUES the hearing on Defendant McLean’s motion for leave to file a cross-complaint for approximately 30 days.

Moving party to give notice.