Judge Theresa M. Traber, Case Number: 20STCV46114, Date: 2023-07-20 Tentative Ruling

Judge: Theresa M. Traber, Case: 20STCV46114, Date: 2023-07-20 Tentative Ruling

Case Number: 20STCV46114 Hearing Date: July 20, 2023 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: July 20, 2023 TRIAL DATE: January 23, 2024

CASE: Edward Allen v. Lloyd Kraus et al.

CASE NO.: 20STCV46144 consolidated with 22STCV18652

MOTION FOR LEAVE TO FILE CROSS-COMPLAINT

MOVING PARTY: Defendants Lloyd Kraus and Electroease, Inc. d/b/a Electropedic Beds

RESPONDING PARTY(S): No response on eCourt as of 7/17/23

CASE HISTORY:

· 12/02/20: Complaint filed in lead case

· 06/14/21: First Amended Complaint filed in lead case.

· 09/13/21: Second Amended Complaint filed in lead case.

· 06/07/22: Complaint filed by Plaintiff Nancy Allen in this case

· 05/24/23: First Amended Complaint filed by Plaintiff Nancy Allen in this case.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an action for breach of contract, fraud, product liability, and negligence arising from a defective stair lift.

Defendants move for leave to file a cross-complaint.

TENTATIVE RULING:

Defendants’ Motion for Leave to File a Cross-Complaint is GRANTED.

A stand-alone copy of the cross-complaint is to be filed within 2 days and served within 10 days of the date of this order.

DISCUSSION:

Procedural Posture of Cross-Complaint

Defendants purport to bring this motion as a motion for leave to file a compulsory cross-complaint pursuant to Code of Civil Procedure section 426.50. However, section 426.50 expressly applies only to cross-complaints that are subject to the provisions of sections 426.10 et seq. Specifically, Code of Civil Procedure section 426.30 subdivision (a) provides that:

Except as otherwise provided by statute, if a party against whom a complaint has been filed and served fails to allege in a cross-complaint any related cause of action which (at the time of serving his answer to the complaint) he has against the plaintiff, 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 (a).) Here, however, Defendants are not seeking to bring a cross-complaint against the Plaintiff, but rather against a third party. Thus, Defendants are not attempting to file a compulsory cross-complaint, but rather a permissive cross-complaint subject to Code of Civil Procedure section 428.10 et seq.

Analysis

Defendants move for leave to file a cross-complaint for apportionment of fault, indemnification, contribution, and declaratory relief against proposed cross-defendant Handy Dan Welder, a.k.a. Dan Kellegreen.

Under Code of Civil Procedure section 428.10, a party against whom a cause of action has been asserted in a complaint or cross-complaint may file a cross-complaint against a third party setting forth:

Any cause of action he has against a person alleged to be liable thereon, whether or not such person is already a 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.

(Code Civ. Proc. § 428.10(b).) A cross-complaint against a third party may be filed as of right at any time before the court has set a date for trial, but thereafter requires leave of court. (Code Civ. Proc. § 428.50(b)-(c).) Leave may be granted in the interest of justice at any time during the course of the action. (Code Civ. Proc. § 428.50(c).)

Defendants bring this motion to assert cross-claims against a proposed cross-defendant on the basis that the proposed cross-defendant is partially or completely responsible for the malfunctioning stairlift that gave rise to this action. (Declaration of Jennifer A. Schwarz ISO Mot. ¶ 13.) According to Defendants, Plaintiff Nancy Allen testified in deposition on May 22, 2023 that the proposed Cross-Defendant performed work on the stairlift in October 2019, and that the lift continued to have problems through November 2019. (Id., see also Exh. C.) The Court finds Defendants have demonstrated that the claims asserted arise out of the same series of occurrences as those asserted in the operative pleadings, such that the interests of judicial economy and justice would be served by having these claims resolved together. Plaintiffs have not opposed this motion, and therefore have not shown that they would suffer any prejudice thereby. (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1118.)

The Court therefore finds good cause to grant leave to file this cross-complaint.

CONCLUSION:

Accordingly, Defendants’ Motion for Leave to File a Cross-Complaint is GRANTED. A stand-alone copy of the cross-complaint is to be filed within 2 days and served within 10 days of the date of this order.

Moving Parties to give notice.

IT IS SO ORDERED.

Dated: July 20, 2023 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.