Case Number: VC067121 Hearing Date: February 14, 2019 Dept: SEC

DOMINGO PADILLA v. HENRY AGUILA

Case No. VC067121

Hearing: Feb. 14, 2019

JUDGE: KRISTIN S. ESCALANTE

#6

TENTATIVE ORDER

Plaintiff DOMINGO PADILLA’s motion to strike Defendant and Cross-Complainant’s HENRY AGUILA’s Cross-Complaint is DENIED. The Cross-Complaint is deemed filed as of February 14, 2019.

Moving Party to give notice.

This action was filed on May 5, 2018, and Defendant answered on October 25, 2018. On December 4, 2018, Defendant filed an amended answer and a cross-complaint. Defendant did not seek leave of Court before filing the Cross-Complaint. Plaintiff has moved to strike the Cross-Complaint as untimely. Defendant argues that the Court should not strike the Cross-Complaint because it arises out of the same transaction as the Complaint and thus is compulsory. Defendant argues that it would conserve judicial resources to allow its Cross-Complaint to stand rather than require it to file a motion for leave to file it.

Section 428.50(a) of the Code of Civil Procedure provides that a defendant “shall” file a cross-complaint against the plaintiff “at the same time as the answer to the complaint.” Section 428.50(c) provides that a defendant “shall” obtain leave of court to file any cross-complaint that is not filed within time allowed by section 428.50(a). Defendant should have obtained leave of Court before filing.

But striking the cross-complaint here would serve no purpose and would unnecessarily consume judicial resources and extend the life of the case. The complaint in this action alleges that Defendant breached a promissory note; in the cross-complaint, Defendant alleges that Plaintiff breached the very same note. As the cross-complaint arises out of the same transaction as a cause of action that has been alleged in the complaint, the cross-complaint is clearly compulsory. A court must grant leave to file a compulsory cross-complaint irrespective of whether the failure to timely file the cross-complaint was due to oversight, inadvertence, mistake, neglect, or another cause, so long as the party making the motion has not acted in bad faith or no substantial prejudice to the adverse party is shown. (Silver Organizations Ltd. v. Frank (1990) 217 Cal. App. 3d 94, 98-100; Foot’s Transfer & Storage Co. v. Superior Court (1980) 114 Cal. App. 3d 897, 902–903). Defendant has provided sufficient evidence to the Court that the late filing of the Cross-Complaint was not in bad faith, and there has been no showing of prejudice.

The Court construes Defendant’s opposition as a request for leave to file the cross-complaint. Leave for the filing of the cross-complaint is granted, and the cross-complaint is deemed filed as of February 14, 2019. Plaintiff’s motion to strike is denied.