Judge: William A. Crowfoot, Case: 21STCV41575, Date: 2022-08-22 Tentative Ruling

Case Number: 21STCV41575    Hearing Date: August 22, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

 

JESUS SALMERON TERRIQUEZ, et al.,

                   Plaintiff(s),

          vs.

 

JENNIFER LYN NELSON, et al.,

 

                   Defendant(s).

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      CASE NO.: 21STCV41575

 

[TENTATIVE] ORDER RE: DEFENDANT MARK EDWARD HASSEL’S MOTION FOR LEAVE TO FILE A CROSS-COMPLAINT

 

 

Dept. 27

1:30 p.m.

August 22, 2022

 

I.            INTRODUCTION

On November 10, 2021, Plaintiffs Jesus Salmeron Terriquez; Luz Maria Celis De Salmeron; and Pedro Alejandro Salmeron Terriquez, a minor by and through his guardian ad litem Jesus Salmeron Terriquez (collectively “Plaintiffs”) filed this action against Defendants Jennifer Lyn Nelson (“Nelson”) and Does 1 through 25.  Plaintiff filed the operative First Amended Complaint against Defendants Nelson, Mark Edward Hassel (“Hassel”), and Does 1 through 25 on February 23, 2022, asserting causes of action for (1) negligence, (2) negligence per se, and (3) loss of consortium.

On April 26, 2022, Defendant/Cross-Complainant Hassel filed a cross-complaint against Defendant/Cross-Defendant Nelson for (1) equitable indemnity and (2) contribution.

On June 17, 2022, Hassel filed this motion for leave to file a cross-complaint.  No opposition has been filed.

II.          LEGAL STANDARD

CCP section 428.10 provides the following:

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 Civ. Proc., § 428.10.)

          After the trial date has been set, a party seeking to file a cross-complaint must obtain leave of court.  (Code Civ. Proc., § 428.50, subd. (b).)  Leave may be granted in the interest of justice at any time during the course of the action.  (Id., § 428.50, subd. (c).)  Indeed, where a cause of action would otherwise be lost, leave to amend is appropriate even if the party was negligent in not moving for leave to amend earlier.  (Silver Organizations, Ltd. v. Frank (1990) 217 Cal.App.3d 94, 98-99.)

III.        DISCUSSION

Defendant/Cross-Complainant Hassel seeks leave to file a cross-complaint for indemnity and contribution against Plaintiff Jesus Salmeron Terriquez.

As acknowledged by Hassel, Hassel filed a cross-complaint against Nelson on April 26, 2022.  Given Hassel already filed a cross-complaint in this action, Hassel should have sought leave to amend the cross-complaint to assert causes of action against Plaintiff Jesus Salmeron Terriquez pursuant to CCP section 473(a) and CRC Rule 3.1324, not leave to file a separate cross-complaint against Plaintiff pursuant to CCP section 428.50. 

Additionally, CCP section 472 provides that “[a] party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike.”  (Code Civ. Proc., § 472, subd. (a).)  Thus far, no responsive pleading has been filed to Hassel’s cross-complaint.  Under these circumstances, it would appear Hassel may file an amended cross-complaint without leave of court under CCP section 472.

VI.     CONCLUSION

          In light of the foregoing, the motion for leave to file a cross-complaint is DENIED.

Moving party to give notice. 

 

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@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.