Judge: William A. Crowfoot, Case: 22STCV14528, Date: 2022-12-07 Tentative Ruling

Case Number: 22STCV14528    Hearing Date: December 7, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

This action was filed on April 29, 2022, and arises from a motor vehicle collision.  The complaint alleges Zhong Xin Du (“Defendant”) completed an unsafe lane change and collided with a vehicle driven by plaintiff Aram Dachian with co-plaintiff Aram Dashyan in the passenger seat.  The complaint alleges causes of action for (1) motor vehicle and (2) general negligence.

Defendant was served on May 28, 2022, and filed an untimely answer on September 16, 2022 without a cross-complaint.  Defendant filed this motion for leave to file a cross-complaint on October 5, 2022.  Aram Dachian and Aram Dashyan (collectively, “Plaintiffs”) filed an opposition on November 23, 2022, and Defendant filed a reply on November 30.  Trial is currently set for October 27, 2023.

II.          LEGAL STANDARD

Under Code of Civil Procedure section 426.50, “[a] party who fails to plead a [compulsory cross-complaint], 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.”

III.        DISCUSSION

Defendant’s argument in support of leave to file a cross-complaint is threefold: (1) the cross-complaint is compulsory, (2) Defendant should not be penalized for the attorney’s good faith mistake, and (3) the policy behind Code of Civil Procedure 426.50 favors grant, and Plaintiffs will not suffer prejudice.

Compulsory Cross-Complaint

Ordinarily, Defendant’s cross-complaint would be compulsory under Code of Civil Procedure section 426.10(c) because Defendant’s claim arises from the same accident that forms the basis of Plaintiffs’ complaint.  But failure to file a compulsory cross-complaint with the answer waives and bars those claims a defendant could have asserted against the plaintiff.  After a defendant fails to file a compulsory cross-complaint with an answer, the only way to file a compulsory cross-complaint is through section 426.50.  (Carroll v. Import Motors, Inc. (1995) 33 Cal.App.4th 1429, 1436.)

Plaintiffs highlight section 426.30(a) to argue that the cross-complaint is barred because it was not filed with the answer.  But section 426.30(a) only precludes a defendant from asserting claims against a plaintiff “in any other action.”  Defendant does not seek to file a separate complaint in a different action; Defendant seeks to file a cross-complaint in the same action.

Good Faith Mistake

Defense counsel insists the failure to file the compulsory cross-complaint with the answer was a good faith mistake.  Counsel explains that they were new to the firm when they discovered the answer was overdue and rushed filing the answer.  (Mot., Sohovich Decl. ¶ 3.)  Counsel admits to believing that the two Plaintiffs were one individual.  (Mot., Sohovich Decl. ¶ 4.)  According to defense counsel, they drafted the motion for leave to file a cross-complaint as soon as they discovered the mistake.  (Mot., Sohovich Decl. ¶ 6.)  Defense counsel calls this an honest and careless mistake and prays the court does not punish Defendant for it.  (Reply, p. 2.)

In contrast, Plaintiffs assert “there was no good faith mistake when filing a cross complaint 20 days after the answer, specially taking into consideration that the answer was filed about four months after the complaint was served.”  (Opposition, p. 4.)  Plaintiffs continue, “Defendant’s counsel misrepresented the facts . . . that he had not realized that there were two plaintiffs involved, when clearly in the answer, and subsequently served Form Interrogatories, the counsel mentioned both plaintiffs. . . .”  (Opposition, p. 4.)

Given these facts and the declaration from counsel, it is difficult to determine whether there was an actual good faith mistake in the late filing of the cross-complaint.  But while the existence of a good faith mistake imposes on the Court the duty to grant leave to file a cross-complaint, Plaintiffs also remind the Court “the statutory terminology [of section 426.50] allows the court a discretion in determining whether or not a defendant has acted in good faith.”  (Opposition p. 4, emphasis Plaintiffs’.)  In exercising its discretion, the Court notes section 426.50 explicitly states, “This subdivision shall be liberally construed to avoid forfeiture of causes of action.”

Policy Behind Section 426.50 and Prejudice to Plaintiffs

Defendant’s argument on this point largely quotes the text of the statute, then highlights “the trial date is not until October 27, 2023, discovery has just begun, and depositions of parties have not yet been taken.”  (Mot., p. 4.)  The Court agrees.  Plaintiffs suffer little, if any, prejudice by granting Defendant leave to file the cross-complaint.

IV.         CONCLUSION

Accordingly, Defendant’s motion to file a cross-complaint is GRANTED.

Plaintiffs are requested to provide page numbers in their filings in the future.

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.