Judge: Steven A. Ellis, Case: 23STCV15609, Date: 2024-08-07 Tentative Ruling

Case Number: 23STCV15609    Hearing Date: August 7, 2024    Dept: 29

Delgadillo v. Berrera
23STCV15609

Defendants’ Motion for Leave to File Cross-Complaint

Tentative

The hearing is continued.

Background

On July 5, 2023, Alonso Delgadillo (“Plaintiff”) filed a complaint against Francisco Berrera, Maria Berrera, Yocelyne Barrera-Baltazar (collectively “Defendants”), and Does 1 through 10, asserting causes of action for (1) statutory liability under Civil Code section 3342 and (2) negligence/premises liability, arising out of a dog bite incident occurring on August 5, 2021.

Defendants filed an answer on December 12, 2023.

On April 17, 2024, Defendants filed this motion for leave to file a cross-complaint. No opposition has been filed. The hearing was continued, on the Court’s own motion, from July 3 to August 7.

On April 19, 2024, Plaintiff amended the complaint to name Jerry Renteria as Doe 1.

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

Defendants seek leave to file a cross-complaint that appears to be permissive: it appears from the moving papers that Defendants seek to assert causes of action against individuals other than the Plaintiff.

The Court uses the word “appears,” however, as Defendants have not submitted a copy of the proposed cross-complaint.  Defendants state that they will assert claims against “Cross-Defendant” or “Cross-Defendants,” but the Court has no idea who the “Cross-Defendant” or “Cross-Defendants” are.

The declaration of Defendants’ counsel states that the proposed cross-complaint is attached to the moving papers, but it is not.

Accordingly, the hearing on this motion is continued for approximately 30 days.  Defendants are ordered to file and serve a further declaration from counsel that attaches a copy of the proposed cross-complaint no less than 16 court days in advance of the hearing.

Conclusion

The Court CONTINUES the hearing for approximately 30 days.

The Court ORDERS Defendants to file and serve a further declaration from counsel that attaches a copy of the proposed cross-complaint no less than 16 court days in advance of the hearing.