Judge: Thomas Falls, Case: 21PSCV00030, Date: 2022-10-20 Tentative Ruling

Case Number: 21PSCV00030    Hearing Date: October 20, 2022    Dept: R

ROBERT BURTON vs TONY CERDA, et al. (21PSCV00030)

MOTION FOR LEAVE TO FILE CROSS-COMPLAINT

8Responding Party: Unopposed as of 10/18 (due 9 court days before a hearing)

Tentative Ruling

MOTION FOR LEAVE TO FILE CROSS-COMPLAINT is GRANTED. The proposed cross-complaint filed with this motion will be deemed filed as of this date. 

Background

This is an action for injunctive relief involving the Costanoan Rumsen Carmel Tribe (“Costanaon Tribe”). Plaintiff Robert Burton is the Costanaon Tribe’s elected Chairman. Plaintiff alleges that Defendants Tony Cerda and Carla Ippolitti held an unauthorized emergency meeting wherein they elected themselves as council members, in direct violation of the tribal bylaws. Furthermore, Plaintiff alleges that Defendants are in possession of tribal property and have posted libelous remarks about Plaintiff.

On January 13, 2021, Plaintiff filed the instant action for injunctive relief and a permanent restraining order.

On February 16, 2021, Defendants filed a General Denial.

On August 12, 2021, Defendants filed a substitution of attorney (as they were previously pro per).  

On January 11, 2022, the parties met with mediator John Irwin, but were unable to settle the case.

On August 9, 2022, Defendant Tony Cerda filed the instant motion for leave to file a cross-complaint (“motion”).

Legal Standard

Defendant Cerda brings forth the instant motion pursuant to CCP section 426.50.

Generally, a party must file a cross-complaint against any of the parties who filed the complaint or cross-complaint against him or her before or at the same time as the answer to the complaint or cross-complaint. (Code Civ. Proc., § 428.50(a).)  

The court may grant leave to file a cross-complaint if the failure to plead a cause of action was the result of oversight, inadvertence, mistake, neglect, or other cause. (Code Civ. Proc., § 426.50) (emphasis added). Where the proposed cross-complaint arises out of the same transaction as plaintiff’s claim, the court must grant leave to file the cross-complaint as long as defendant is acting in good faith. (Id.) Judicial policy favors resolution of all disputed matters between the parties in the same lawsuit and discretion will usually be exercised liberally to permit amendment of the pleadings. (See Nestle v. Santa Monica (1972) 6 Cal.3d 920, 929.) 

A party may obtain leave of court to file a cross-complaint at any time during the course of a lawsuit, and leave may be granted in the interest of justice. (Code Civ. Proc., §§ 426.50, 428.50; see also Sidney v. Superior Court (1988) 198 Cal.App.3d 710, 718.) 

“To the extent practicable, all supporting memorandums and declarations must be attached to the notice of motion.” (CRC Rule 3.1113(j).) 

Discussion

Defendant Cerda seeks to file a cross complaint against Plaintiff for 1. Conversion 2. Breach of Written Contract 3. Breach of Implied Covenant of Good Faith and Fair Dealing 4. Fraud/Intentional Misrepresentation 5. Breach of Fiduciary Duty 6. Declaratory Judgment 7. Injunctive Relief.

More specifically, Defendant’s position is that he was the president of the Tribe, but after a health issue, Plaintiff merely served as the interim chairperson. As for why the motion was not brought at the time of filing the general denial, Defendant does not squarely address the issue but appears to argue that (i) he had expressed his desire to file a cross-complaint in mediation and during the past CMC and (ii) he assumed the Tribal Election would resolve the issue, but the election did not take place. Notably, the court observes that at the time of filing the general denial, Defendants were pro per, perhaps contributing to the failure to file a cross-complaint.

Therefore, as Defendant’s cross-complaint is related to the same transaction, occurrence and events as set forth in Plaintiff’s complaint (i.e., Tribe’s lawful chairman) and Defendant’s failure to timely file a cross-complaint is attributable to the aforementioned excusable causes, the court finds Defendant has brought forth the motion in good faith.  

Conclusion