Case Number: BC613526 Hearing Date: December 26, 2017 Dept: 47

Dan K. Fordice III v. Mark Carter, et al.

MOTION FOR LEAVE TO FILE AMENDED CROSS-COMPLAINT

MOVING PARTY: Cross-Complainants Mark Cartier and North of Two Entertainment, LLC

RESPONDING PARTY(S): Plaintiff Dan K Fordice

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Defendants allegedly breached an agreement to develop a full-length feature film in which Plaintiff invested $1,000,000, and instead squandered and converted Plaintiff’s entire investment.

Defendants filed a cross-complaint alleging that Plaintiff failed to fulfill his obligation to assist in raising the additional financing needed to complete the film. It is further alleged that Plaintiff and attorney Yakub interfered with Defendants’ reputation, business, business interests, business prospects, and economic interests by filing the Complaint in this action.

Cross-Complainants Mark Cartier and North of Two Entertainment, LLC move for leave to file a first amended cross-complaint.

TENTATIVE RULING:

Cross-Complainants Mark Cartier and North of Two Entertainment, LLC’s motion for leave to file a first amended-cross-complaint is DENIED.

DISCUSSION:

Motion For Leave To File First Amended Cross-Complaint

On August 24, 2016, Cross-Complainants/Defendants Mark Cartier and North of Two Entertainment, LLC filed a Cross-Complaint against Dan K. Fordice, III and Lisha Yakub, Esq.

On January 4, 2017, Cross-Complainants voluntarily dismissed the Cross-Complaint without prejudice.

Now, Defendants Mark Cartier and North of Two Entertainment, LLC seek leave to file a first amended cross-complaint. However, because these Defendants dismissed their original Cross-Complaint on January 4, 2017, they are in the position of currently not having any cross-complaint pending. In this regard, Defendants are in the position of having to justify filing a new cross-complaint at this stage of the pleadings. Hence, there is no current cross-complaint to “amend.”

CCP § 428.50 provides:

(a) 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.

(b) Any other cross-complaint may be filed at any time before the court has set a date for trial.

(c) 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.

(Bold emphasis and underlining added.)

CCP § 426.50 provides:

A party who fails to plead a cause of action subject to the requirements of this article, 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.

“A motion to file a cross-complaint at any time during the course of the action must be granted unless bad faith of the moving party is demonstrated where forfeiture would otherwise result. Factors such as oversight, inadvertence, neglect, mistake or other cause, are insufficient grounds to deny the motion unless accompanied by bad faith.” Silver Orgs. v. Frank (1990) 217 Cal.App.3d 94, 99 (bold emphasis and underlining added).

[D]elay only may constitute the requisite bad faith to preclude the granting of the request to file a cross-complaint when it appears that a delayed cross-complaint, if allowed, would work a substantial injustice to the opposing party and would prejudice that party’s position in some way.

Foot’s Transfer & Storage Co., supra, 114 Cal.App.3d 897, 903.

Although the proposed Cross-Complaint seeks to reassert causes of action against Plaintiff Dan K. Fordice, it also seeks to add two new parties—Lisha Yakub and Jonathan Jergenson. Putting aside the question of whether a compulsory cross-complaint against Fordice only would be proper (despite having earlier dismissed their claims against him), the fact that Cross-Complainants are seeking to add two new parties at this stage of the litigation suggests that the Cross-Complaint is perhaps being filed in bad faith, i.e., to delay this action. Because the Cross-Complaint against non-parties Yakub and Jergenson would be permissive, Cross-Complainant can simply file a separate action against them. In short, there is an inadequate showing that these new parties are “necessary” parties to this action.

Per Weil and Brown, Civil Procedure Before Trial, The Rutter Group, § 6:544:

Cross-complaint against third parties are permissive, not mandatory. While it may be “more orderly and expeditious” to resolve all claims in single lawsuit, this is not required. Defendants may wait and pursue their rights against third parties in subsequent, independent proceedings. [See Insurance Co. v. North America v. Liberty Mut. Ins. Co. 91982) 128 C.A.3d 297, 303 . . .]

(Italics in original, underlining and bold emphasis added.)

Accordingly, the motion for leave to file the proposed first amended cross-complaint, as drafted, is DENIED.

Moving Party to give notice, unless waived.

IT IS SO ORDERED.

Dated: December 26, 2017 ___________________________________

Randolph M. Hammock

Judge of the Superior Court