Judge: Thomas Falls, Case: 18PSCV00128, Date: 2022-11-22 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, attorneys are advised to check this website to determine if any changes or updates have been made to the tentative ruling. Counsel may submit on the tentative rulings by calling the clerk in Dept. R at 909-802-1117 before 8:30 the morning of the hearing.

Case Number: 18PSCV00128    Hearing Date: November 22, 2022    Dept: R

Michel Roman v. Covina-Valley Unified School District (18PSCV00128)

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Defendant Covina-Valley Unified School District’s MOTION FOR LEAVE TO FILE CROSS-COMPLAINT

            Responding Party: Unopposed

Tentative Ruling

The hearing on Defendant Covina-Valley Unified School District’s Motion for Leave to File Cross-Complaint is GRANTED.

Background   

On September 9, 2020, Plaintiff Michel Roman (“Plaintiff”) filed a Complaint against defendant Covina-Valley Unified School District (“Defendant”) and Doe defendants for injuries arising from a fall on the bleacher stairs at the Covina High School gymnasium. On September 9, 2020, Plaintiff filed the First Amended Complaint, asserting a cause of action of Dangerous Condition of Public Property against Defendant.

On October 19, 2022, Defendant filed this instant motion for leave to file a Cross-Complaint against Sports Facilities Group, Inc. (“SFG”).

On October 24, 2022, the Court found that Defendant did not timely file its motion and continued the hearing for Defendant’s motion to November 22, 2022.

As of November 17, 2022, no opposition has been filed.

A trial date has not been set.

Legal Standard

Under Code of Civil Procedure Section 426.50, “[a] party who fails to plead a cause of action subject to the requirements of this article, whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave to amend his pleading, or to file a cross-complaint, to assert such cause at any time during the course of the action. 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. This subdivision shall be liberally construed to avoid forfeiture of causes of action.”

“A motion to file a cross-complaint at any time during the course of the action must be granted unless bad faith of the moving party is demonstrated where forfeiture would otherwise result. Factors such as oversight, inadvertence, neglect, mistake or other cause, are insufficient grounds to deny the motion unless accompanied by bad faith.” (Silver Organizations Ltd. v. Frank (1990) 217 Cal.App.3d 94, 99.)

Discussion

Procedural Defects

Defendant’s Proof of Service indicates that it served the instant motion both by electronic mail and by personal service, however, the service list only contains the mailing address for Sports Facilities Group and does not provide an email address. Thus, Defendant gave proper notice by personal service, but did not show that it gave proper notice by electronic mail since it did not provide an email address in the service list. 

Analysis

Defendant moves the court for an order permitting it to file a Cross-Complaint against SFG. Thus, Defendant claims that the Cross-Complaint is compulsory because it arises out of the same transaction or series of transactions and occurrences as Plaintiff’s complaint. Defendant states that pursuant to investigation and discovery, including the subpoenaed deposition of the Person Most Qualified (“PMQ”) from SFG, it has been determined that SFG owed a duty to inspect, maintain, adjust, service, clean, repair, replace and/or otherwise provide maintenance services for Defendant, including, but not limited to, ensuring proper function and safe condition of the indoor bleachers in the Covina High School gymnasium, the location where Plaintiff’s subject Incident occurred. Defendant maintains that no dangerous condition of public property existed at the time of the incident, but should a dangerous condition be established, the existence of said condition would be due to SFG’s breach of the aforementioned duties.

“There are no compulsory cross-complaints against parties other than plaintiff. Rather, the issue usually is whether a cross-complaint against such parties will be permissible. A defendant can cross-complain against a codefendant or third person not yet a party to the action only if the cause of action asserted ‘(1) arises out of the same transaction, occurrence, or series of transactions or occurrences [set forth in the complaint] … or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause [of action] brought against him.’ (Code of Civ. Proc. § 428.10(b) (emphasis added).) This is somewhat broader than the ‘same-transaction-or-series’ rule governing compulsory cross-complaints against plaintiff. Here, it is sufficient that the claims refer to the same property or controversy—even if not arising at the same time or out of the same series of events.” (D. Cross-Complaint, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 6-D.)

Defendant improperly claims that its Cross-Complaint is compulsory because it asserts cross-claims against a third party and not Plaintiff. However, Defendant’s Cross-Complaint is permissive because it arises out of the same transaction, occurrence, or series of transactions or occurrences set forth in the complaint. Here, the Cross-Complaint is based on Plaintiff’s subject Incident, and Defendant cross-claims against SFG for negligence, implied indemnity, contribution and indemnity, and declaratory relief. “The history of the legislation leaves no doubt but that these provisions authorize a defendant to file a cross-complaint against a person, not named in the original complaint, from whom he claims he is entitled to indemnity.” (American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 605-606.) Thus, the Court finds that Defendant has sufficiently shown that it is entitled to file a Cross-Complaint against SFG.

Conclusion

Based on the foregoing, the Court GRANTS Defendant’s Motion for Leave to File Cross-Complaint.