Judge: Steven A. Ellis, Case: 23STCV25126, Date: 2024-06-13 Tentative Ruling

Case Number: 23STCV25126    Hearing Date: June 13, 2024    Dept: 29

Motion for Leave to File Cross-Complaint from Defendant Piken Silverman E.L.A., LLC

Tentative

The motion is granted.

Background

On October 16, 2023, Roberta Weiser (“Plaintiff”) filed a complaint against Riken Silverman E.L.A., LLC (“Defendant”) and Does 1 through 25 for premises liability arising out of trip and fall occurring on October 30, 2021.

On January 19, 2024, Defendant filed an answer.

On February 27, 2024, Defendant filed this motion for leave to file a cross-complaint. 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 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 that allowing the filing of the proposed permissive cross-complaint is in the interests of justice as it has learned in reviewing its lease agreement with Albertson’s that Albertson’s was responsible for maintaining the parking lot. (Motion, 5:14-16; Sabongui Decl., ¶ 4.)  The Court, of course, expresses no views with regard to the merits of Defendant’s contention.

It is clear that the proposed cross-complaint arises out of the same set of facts as Plaintiff’s complaint, as Defendant merely states it is for express indemnity, implied equitable indemnity, apportionment of fault, and declaratory relief, based on Defendant’s contention that, under the lease, Albertson’s had a duty to maintain the premises at issue.  Defendant acted promptly and diligently, and the Court notes that there will still likely be adequate time for a new party to conduct discovery, as the trial date is on April 14, 2025.

The motion is granted.  Leave to file the proposed cross-complaint is in the interests of justice.

Conclusion

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

The Court ORDERS Defendant to file the proposed cross-complaint attached to the moving papers within 10 days of the hearing and to serve the cross-defendant promptly.

Moving Party to give notice.