Judge: Walter P. Schwarm, Case: 30-2020-01174464, Date: 2022-09-06 Tentative Ruling

Defendant’s (Cape Cove Homeowners Association) unopposed Motion for Leave to File a Cross-Complaint (Motion), filed on 7-13-22 under ROA No. 46, is GRANTED.

Code of Civil Procedure section 428.10, states, “A party against whom a cause of action has been asserted in a complaint or cross-complaint may file a cross-complaint setting forth either or both of the following: [¶] (a) Any cause of action he has against any of the parties who filed the complaint or cross-complaint against him. Nothing in this subdivision authorizes the filing of a cross-complaint against the plaintiff in an action commenced under Title 7 (commencing with Section 1230.010) of Part 3. [¶] (b) 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 of Civil Procedure section 428.50 states, “(a) A party shall 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. [¶] Any other cross-complaint may be filed at any time before the court has set a date for trial. [¶] (c) A party shall obtain leave of court to file any cross-complaint except one filed within the time specified in subdivision (a) or (b). Leave may be granted in the interest of justice at any time during the course of the action.”

The Declaration of Andrew J. Mallon states, “Defendant has several causes of action against McCormack Roofing as set forth in the proposed Cross-Complaint, a copy of which is included as Exhibit A to this declaration. The causes of action set forth in the proposed Cross-Complaint are for indemnity, contribution, breach of contract, and declaratory relief, all relating to the claims alleged against Defendant in Plaintiffs’ Complaint and arise out of the same occurrence upon which Plaintiffs’ Complaint is based upon. [¶] The proposed Cross-Complaint was not filed at an earlier time because Defendants recently discovered through its discovery process that McCormack Roofing is responsible for the construction defects at Plaintiffs’ property that is the subject of this instant action. [¶] It is in the interest of justice that leave be granted to file the proposed Cros-Complaint. If leave is not granted by this Court, Defendant will file a separate action against McCormack Roofing which will require a separate trial, whereas if leave is granted, all controversies between the parties can be resolved in this instant action.” (McCormack Decl., ¶¶ 6-8 and Exhibit A.)

Based on the declaration from Andrew J. Mallon, the court finds that the proposed Cross-Complaint arises out of the same transaction or occurrence as Plaintiffs’ (Herbert Kaplan and Suzanne Kaplan) Complaint filed on 12-14-20 under ROA No. 2.

Based on the above, the court GRANTS Defendant’s (Cape Cove Homeowners Association) unopposed Motion for Leave to File a Cross-Complaint filed on 7-13-22 under ROA No. 46.  The court ORDERS Defendant to electronically file and the Cross-Complaint, attached as Exhibit A to the declaration of Andrew J. Mallon (Mallon Decl., ¶ 4), no later than 9-9-22.

Defendant is to give notice.