Judge: William A. Crowfoot, Case: 20STCV30212, Date: 2023-02-09 Tentative Ruling

Case Number: 20STCV30212    Hearing Date: February 9, 2023    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT

I.            INTRODUCTION

          Plaintiff Cindy Ortiz-Guerra (“Plaintiff”) on August 16, 2021, filed the Second Amended Complaint (“SAC”) against The Arcadia Spine Center; Clarizio Chiropractic, Inc. (“Clarizo Inc.”); Dr. Winston Shi, an individual; Xu Shi Acupuncture, an unknown entity; Doe front Desk, an individual (Doe 1); Doe Office Manager, an individual (Doe 2); and Does 3 to 25, inclusive alleging (1) Medical Negligence; (2) Medical Battery; (3) False Imprisonment; (4) Negligence; (5) Premises Liability; (6) Negligent Supervision, Hiring, and/or Retention; and (7) Intentional Infliction of Emotional Distress. The causes of action are asserted against all Defendants except the cause of action for negligence which is asserted against Front Desk (Doe 1), Office Manager Doe (2) and remaining Does (3-25). The causes of action arise from injuries sustained by Plaintiff during acupuncture treatment administered by Defendant Dr. Winston Shi.

On October 12, 2021, Defendants Clarizo, Inc. and Robert Clarizo (“Robert”) filed an answer to the SAC.

On January 6, 2023, Clarizo Inc. and Robert (collectively “Moving Parties”) filed this instant motion for leave to file cross-complaint against Dr. Shi; Xu Shi Acupuncture; Doe Front Desk (Doe 1), Doe Office Manager (Doe 2), and Roes 1 to 100, inclusive (collectively “Responding Parties” or “proposed Cross-Defendants”.).

On January 27, 2023, Responding Parties filed an opposition.

On February 2, 2023, Moving Parties filed a reply.

Trial is currently scheduled for June 26, 2023.

II.          LEGAL STANDARD

“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. . . .

(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 Civ. Proc., § 428.10.)

Leave of court to file a permissive cross-complaint may be granted in the interest of justice at any time during the course of the action. (Code Civ. Proc., § 428.50.)

III.        DISCUSSION

Moving Parties assert their cross-complaint arises out of the same incident Plaintiff alleges in the SAC, wherein she alleges that she suffered injury when the proposed Cross-Defendants left acupuncture needles in Plaintiff, left her in a treatment room, and failed to return to complete treatment. Moving Parties contend that the additional insured provision in the lease agreement between Moving Parties and proposed Cross-Defendants provides for indemnification to Moving Parties, as an additional insureds, for wrongful acts by Dr. Shi and Xu Shi Acupuncture.

The Court agrees that the causes of action in the proposed cross-complaint arise out of the same transaction, occurrence, or series of transactions or occurrences as the SAC. Moreover, the Court finds that this motion was made in good faith and should it be granted in the interests of justice.

Moving parties contend that they tendered their defense to the Responding parties and their insurer, but the tender was denied. Moving parties point to this denial as a sufficient fact and circumstance which supports granting leave to file their cross-complaint. While this motion was brought considerably later than it should have, as the tender for insurance could have been made sooner, there is no evidence that the lateness of the motion has been motivated by bad faith. Moreover, Moving Parties’ belief that they were the beneficiaries of an insurance coverage provision in the lease is not unreasonable on its face.  Rather than require that the Moving Parties make the insurance coverage issue the subject of a new separate action, the Court will exercise its discretion to grant the leave sought by the Moving Parties so as to resolve in this case all of the issues arising out of Plaintiff’s action.

Responding Parties explain that they will be prejudiced if this Court grants the instant motion. Here, Responding Parties did not cross-examine Robert Clarizo at the time of his deposition because they had no reason to believe that they “were not on the same ‘team.’” (Opp. P. 5:13-15.) Responding Parties argue that they have insufficient discovery presently and that a delay in trial is costly. Given the current trial date, however, and the relatively simple issues raised by the proposed cross-complaint, the Court does not expect, nor will it permit, unnecessary costly delay. 

IV.         CONCLUSION

Based on the foregoing, the court GRANTS Moving Parties’ motion for leave to file a cross-complaint, which it must do not more than five court days from the date of this ruling.

Moving Parties are ordered to give notice of this ruling.

Parties who intend to submit on this tentative must send an email to the Court at alhdept3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.