Judge: Steven A. Ellis, Case: 23STCV23541, Date: 2024-08-30 Tentative Ruling

Case Number: 23STCV23541    Hearing Date: August 30, 2024    Dept: 29

Jackson v. Spalding Mortuary
23STCV23541
Defendant’s Motion for Leave to File Cross-Complaint

Tentative

The motion is granted.

Background

On September 28, 2023, Ashley Jackson and Kenneth Watson (collectively “Plaintiffs”) filed a complaint against Spalding Mortuary, Inc., Cedars Sinai Health Ventures, and Does 1 through 50 for breach of contract, breach of covenant of good faith and fair dealing, and negligence based on the mishandling of the remains of Plaintiff Ashley Jackson’s mother. (Complaint, ¶ 10-17.)

On December 18, 2023, the Court, at the request of Plaintiffs, dismissed Defendant Cedars Sinai Health Ventures.

On February 16, 2024, Plaintiff filed a First Amended Complaint (“FAC”) against Spalding Mortuary, Inc. (“Defendant”) and Does 1 through 50.

On March 5, 2024, Defendant filed an answer and a cross-complaint against Cedars Sinai Health Ventures and Roes 1 through 20.

On May 7, 2024, Defendant dismissed its cross-complaint.

The next day, on May 8, 2024, Defendant submitted a document entitled “First Amended Cross-Complaint,” asserting causes of action against Cedars-Sinai Medical Center (“CSMC”) and Roes 1 through 20.  The document was rejected, however, as a dismissed cross-complaint cannot be amended.

On May 31, 2024, Defendant filed this motion for leave to file a cross-complaint. No opposition has been filed.

The hearing was initially scheduled for July 23.  Because of the cyber attack on the Los Angeles County Superior Court, the hearing was continued to August 28.

On July 24, 2024, Plaintiffs amended their FAC to name CSMC 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

Defendant contends good causes exist for leave to file a cross-complaint against CSMC, as Plaintiffs seeks damages from the mishandling of her mother’s remains, and CSMC may be responsible in whole or in part.  (Shirley Decl., ¶ 7.)

Defendant filed a cross-complaint against Cedars-Sinai Health Ventures (“CSHV”), but after discussing with CSHV’s counsel, determined CSHV was the incorrect entity; counsel accidently dismissed the entire cross-complaint instead of just CSHV. (Id., ¶ 4.)

This cross-complaint arises out of the same set of facts and occurrence as Plaintiff’s complaint, as Defendant it relates to the storage of Plaintiff’s mother’s remains.

Defendant attached a copy of the proposed cross-complaint to its motion. (Exh. D.)

No opposition has been filed.

The Court finds there it is in the interests of justice for Defendant to be granted leave to file its cross-complaint.  All substantive and procedural requirements are satisfied.  The motion is granted.

Therefore, the Court GRANTS Defendant’s motion for leave to file its cross-complaint.

Conclusion

The Court GRANTS Defendant’s motion for leave to file its cross-complaint.

The Court GRANTS Defendant leave to file the cross-complaint attached to its moving papers within 10 days of the hearing.