Case Number: BC617195 Hearing Date: April 06, 2018 Dept: 53

deborah williams vs. city of downey, et al. ; BC617195, APRIL 6, 2018

[Tentative] Order RE: DEFENDANT THE PEOPLE OF THE STATE OF CALIFORNIA, ACTING BY AND THROUGH THE DEPARTMENT OF TRANSPORTATION’S MOTION FOR LEAVE TO FILE CROSS-COMPLAINT AGAINST CITY OF DOWNEY

Defendant THE PEOPLE OF THE STATE OF CALIFORNIA, ACTING BY AND THROUGH THE DEPARTMENT OF TRANSPORTATION’s Motion for Leave to File Cross-Complaint against City of Downey is GRANTED.

BACKGROUND

Plaintiff Deborah Williams (“Plaintiff”) filed this action on April 14, 2016 against Defendants City of Downey (the “City”) and State of California, by and through the California Department of Transportation (“Caltrans”) (jointly “Defendants”).

In the operative Second Amended Complaint (“SAC”) filed on January 26, 2018, Plaintiff asserts causes of action for (1) violation of Government Code §§4450 et seq.; (2) violation of Government Code §§11135 et seq.; (3) violation of Civil Code §§54 et seq.; and (4) violation of Title II of the ADA, 42 U.S.C. §§12131 et seq. Plaintiff, a disabled woman, alleges that she fell while using her electric scooter on the streets of the City of Downey. As a result of the accident, Plaintiff developed cellulitis in her right leg, she required in-home health care for wound treatment and pain management, she was substantially limited in her ability to live independently, and she has experience anxiety, fear, and distress when using the public streets in the City of Downey.

Caltrans filed an Answer to the SAC on February 23, 2018. The Court had previously sustained Caltrans’ demurrer to Plaintiff’s First Amended Complaint on January 9, 2018. Incidentally, Plaintiff and the City have stipulated to extend the deadline for the City to file a responsive pleading to the SAC. The City’s deadline to file a responsive pleading is May 1, 2018. At the time of the filing of the instant motion, trial was set for September 19, 2018. However, on March 26, 2018, Caltrans applied ex parte to vacate and reset trial. The current trial date is set for April 17, 2019.

Caltrans now moves for leave to file a Cross-Complaint against the City. The City opposes.

DISCUSSION

A party against whom a cause of action has been asserted in a complaint may file a cross-complaint setting forth “[a]ny 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.) Cross-complaints against third-party cross-defendants may be filed without leave of court at any time before the court has set a trial date. (Code Civ. Proc., § 428.50(b).) Otherwise, leave of court must be obtained. (Code Civ. Proc., § 428.50(c).) “Leave may be granted in the interest of justice at any time during the course of the action.” (Code Civ. Proc., § 428.50(c).) The decision to grant leave is solely within the trial court’s discretion. (Crocker Nat. Bank v. Emerald (1990) 221 Cal.App.3d 852, 864.) Thus, a court may deny leave to file a cross-complaint based on a defendant’s unexplained delay in moving to file the cross-complaint until shortly before the trial date. (See ibid.)

Here, Caltrans’ proposed Cross-Complaint asserts causes of action for implied equitable indemnity and equitable contribution and comparative indemnity against the City. The Cross-Complaint clearly arises from the same transactions and occurrences as those that are at issue in Plaintiff’s Complaint. (See Time for Living, Inc. v. Guy Hatfield Homes/All Am. Dev. Co. (1991) 230 Cal.App.3d 30, 38 (“Cross-complaints for comparative equitable indemnity would appear virtually always transactionally related to the main action.”).) Therefore, the decision of whether to grant leave rests with the trial court’s discretion and must take into consideration the interests of justice.

Caltrans contends that leave to amend should be granted because the case is not yet at issue, since the City has yet to file a responsive pleading. Caltrans also contends that discovery has only begun. Plaintiff’s deposition has not yet been taken. Plaintiff has also alleged that the City is the owner of the sidewalk at issue in this case. Therefore, the facts and contentions and scope of the case will not change in the face of the Cross-Complaint. In its opposition, the City argues that Caltrans has inexcusably delayed seeking leave to file a Cross-Complaint, and that it will be prejudiced if the motion is granted. According to the City, the Cross-Complaint would unduly complicate Plaintiff’s lawsuit, which the parties have been attempting to settle, and which is the reason for the stipulation to extend the time for the City to file a responsive pleading. The Court finds that the filing of the Cross-Complaint will not necessarily complicate the instant lawsuit, as all parties are and have been on notice of the allegation that the City owns the sidewalk. Further, trial is set for April 17, 2019, which provides plenty of time for the parties to conduct discovery.

Conclusion

Based on the foregoing, Caltrans’ motion for leave to file a cross-complaint is GRANTED.

Caltrans is ordered to give notice.

DATED: April 6, 2018

_____________________________

Howard L. Halm

Judge of the Superior Court