Judge: Theresa M. Traber, Case: 21STCV07164, Date: 2023-04-07 Tentative Ruling

Case Number: 21STCV07164    Hearing Date: April 7, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     April 7, 2023              TRIAL DATE: NOT SET

CASE:                         Americo Financial Life and Annuity Ins. Co. v. Michelle Lyn Smallwood, et al.

CASE NO.:                 21STCV07164           

MOTION FOR LEAVE TO FILE CROSS-COMPLAINT

MOVING PARTY:               Defendant Michelle Lynn Smallwood.

RESPONDING PARTY(S): No response on eCourt as of 4/4/23

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action for statutory interpleader to deposit disputed proceeds from a set of annuity contracts.

Defendant moves for leave to file a cross-complaint.

TENTATIVE RULING:

On February 7, 2023, the Court entered an order instructing Plaintiff to file and serve a Motion for Leave to File a Cross-Complaint on or before March 7, 2023, to be heard on April 7, 2023. (February 7, 2023 Minute Order.) Although the proof of service attached to the instant motion states that it was served by mail on March 1, 2023, the motion was not filed until March 22, 2023. However, the face of the motion states that the motion was originally filed on March 1, rejected by the clerk’s office, and had to be re-filed with corrections. The Court therefore concludes that Defendant substantially complied with the Court’s February 7 order, and will address the merits of the motion.

Parties generally must file a cross-complaint against the party who filed the complaint before or at the same time as the answer to the complaint. (Code Civ. Proc., § 428.50(a).) However, parties seeking to file untimely compulsory cross-complaints may file with the Court for leave to do so, even though the failure to timely file resulted from oversight, inadvertence, mistake, neglect, or other cause. (Id. § 426.50.) In such a case, after notice to the adverse party, the Court must grant leave to file the cross-complaint if the party acted in good faith. Courts liberally construe section 426.50 to avoid forfeiture of causes of action. (Ibid.)

Here, in light of the Court’s February 7 Minute Order stating that cross-pleadings are the preferred method to litigate disputes concerning the propriety of an interpleader action such as this, the Court would be inclined to grant this motion were it procedurally compliant. However, Defendant has not included a proposed cross-complaint with her motion. The motion must include all papers on which it is based. (Code Civ. Proc. § 1010; see also Cal. Prac. Guide Civ. Pro. Before Trial § 6:560.) As there is no proposed pleading before the Court, the Court permit leave to amend on this record. However, considering the origins of this motion and the nature of the defect, the Court will exercise its discretion to continue this motion to permit Defendant to file a proposed cross-complaint.

Accordingly, Defendant’s Motion for Leave to File Cross-Complaint is CONTINUED to May 5, 2023 at 9:00 AM to permit Defendant to serve and file a proposed cross-complaint.

Plaintiff’s simultaneous Request for Dismissal is CONTINUED to May 5, 2023 at 9:00 AM to coincide with that hearing.

Moving party to give notice.

IT IS SO ORDERED.

Dated: April 7, 2023                           ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court