ALMA GOMEZ VS NUMERO UNO MARKET

Case Number: BC518000    Hearing Date: October 21, 2014    Dept: 93

Superior Court of California
County of Los Angeles
Department 93

ALMA GOMEZ, et al.,

Plaintiff(s),
v.

NUMERO UNO MARKET, et al.,

Defendant(s).
Case No.: BC518000

Hearing Date: October 21, 2014

[TENTATIVE] ORDER RE:
DEFENDANT UNIFIED PROTECTIVE SERVICES’ MOTION FOR LEAVE TO FILE CROSS-COMPLAINT

Defendant Unified Protective Services’ Motion for Leave to File Cross-Complaint is GRANTED. Defendant is to file the Cross-Complaint within two days of this Order.

Background

This action arises out of an alleged assault on the premises of Defendant Numero Uno Acquisitions, LLC (“Defendant Numero Uno”). Plaintiff Alma Gomez alleges that she was physically assaulted during a robbery while walking through Numero Uno’s parking lot. Plaintiff Edith Garcia alleges that she witnessed the assault and injuries to her daughter, Plaintiff Gomez. Defendant Unified Protective Services (“Defendant Unified”) was allegedly patrolling the area at the time of the attack, but failed to make its presence known and did not call for police assistance. Defendant Numero Uno filed its answer to the Complaint on September 18, 2013, and the trial date has been set for February 13, 2015. Defendant Unified filed the instant motion for leave to file a cross-complaint against Defendant Numero Uno, which filed its opposition on September 16, 2014. Defendant Unified replied on September 30, 2014.

Legal Standard

CCP Section 428.10 states in relevant part:

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.

“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.” (CCP, § 428.50(a).) Contrary to the argument made by Defendant Numero Uno that a cross-complaint can only be filed before the trial date is set, Section 428.50(c) provides: “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.”

Discussion

Defendant Unified moves for leave to file a cross-complaint against Defendant Numero Uno for full and partial indemnity based on the parties’ services agreement. The agreement states in relevant part: “The number of Unified uniformed security guards present at Client’s property has been determined by Client who agrees to defend, indemnify, hold Unified harmless and hereby waives any claim for damages alleging inadequate staffing caused or contributed to causing any occurrence, loss or harm to Client or others.” (Motion, Proposed Cross-Complaint, Exh. A ¶8.)

Defendant Numero Uno opposes the motion on the ground that the indemnity agreement is inapplicable to the alleged claims in Plaintiffs’ complaint, which states:

Plaintiffs Alma Gomez and her mother Edith Garcia were walking within an enclosed section of a parking lot, designated as parking for defendant Numero Uno Market at 4373 Vermont Avenue, Los Angeles, when Ms. Gomez was physically assaulted during a robbery. While Ms. Gomez suffered physical bodily harm, her mother Edith Garcia, witnessed the attack and suffered emotional distress. Defendant Unified Protective Services, patrolling the area at the time of the attack, failed to make their presence known and did not call for police assistance.

(Complaint, Premises Liability Attachment ¶Prem.L-1.)

Defendant Numero Uno’s arguments regarding the scope of the services agreement exceed the scope of a motion for leave to file a cross-complaint and are more appropriately determined on demurrer or summary judgment. In any event, the allegations in Plaintiffs’ Complaint do not rule out indemnification by Defendant Numero Uno, as it is unclear whether those allegations are based on inadequate staffing. Therefore, it is premature for the court to make a determination that Defendant Unified cannot make a claim for indemnification against Defendant Numero Uno.

Defendant Numero Uno also argues that Defendant Unified fails to provide a reasonable excuse for not filing the cross-complaint earlier. To the contrary, counsel for Defendant Unified discovered the existence of the services agreement in January 2014 and was thereafter communicating with counsel for Defendant Numero Uno and Defendant Unified’s insurer regarding the claim. (Motion, Ingulsrud Decl. (“Ingulsrud Decl.”) ¶¶2-4.) Defendant United tendered his defense to the insurer for Numero Uno on March 11, 2014 (Id. ¶3), but the insurer has not provided a written response. (Id. ¶4.) According to counsel, Defendant Unified did not file a cross-complaint earlier as it believed its insurer Liberty Mutual would defend the action. (Ingulsrud Decl. ¶5.) While Defendant United waited five months after tendering a defense to Liberty Mutual to file this motion, the Court finds that this was not an unreasonable delay in time to wait to see if the insurer would provide a defense, especially in light of the important interests at stake here.

Further, although Defendant Unified was aware of the incident as early as March 2013, when Defendant Numero Uno sought to have Defendant Unified defend the case, this does not mean Defendant Unified was aware of the written indemnity agreement at that time. (See Opp., Exh. C.) Defendant Unified’s conduct, therefore, was not unreasonable and leave to file the cross-complaint should not be denied on this basis.

Finally, Defendant Numero Uno argues that it will be prejudiced if the cross-complaint proceeds because it will suffer a monetary loss from having to defend Defendant Unified despite the lack of any basis to do so in the service agreement. First, this presumes that the service agreement does not require Defendant Numero Uno to defend Defendant Unified, which cannot be determined at this time. Second, Defendant Numero Uno will only suffer a monetary loss if Plaintiffs prevail in their action, which is not yet known. Simply granting the instant motion to permit Defendant Unified to make a claim for indemnity will not prejudice Defendant Numero Uno. Rather, it will allow for resolution of all the claims arising out of the alleged assault on Plaintiff Gomez to be resolved in a single action, which will serve the interests of justice. It would not serve the interests of justice or judicial economy to require Defendant Unified to file a separate action for indemnity against Defendant Numero Unified if Plaintiffs prevail in their action. Therefore, the instant motion for leave to file a cross-complaint is granted.

Defendant Unified is ordered to give notice.

DATED: October 21, 2014
_________________________
Hon. Gail Ruderman Feuer
Judge of the Superior Court

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