Case Number: BC681790 Hearing Date: April 09, 2018 Dept: 47

Katherine Dymond v. The City of Los Angeles, et al.

MOTION FOR LEAVE TO FILE CROSS-COMPLAINT

MOVING PARTY: Plaintiff, City of Los Angeles

RESPONDING PARTY(S): Defendant, Jon Betuel; Plaintiff Katherine Dymond

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that a landslide, for which the various Defendants are responsible, caused damage to Plaintiff’s property.

Various Defendants filed cross-complaints for indemnity and/or damage to their property.

Plaintiff The City of Los Angeles moves for leave to file a cross-complaint.

TENTATIVE RULING:

Plaintiff The City of Los Angeles’s motion for leave to file a cross-complaint is GRANTED.

A stand-alone copy of the cross-complaint is to be filed today. The cross-complaint shall be deemed served as of the date of this order. Cross-Defendants are to respond to the cross-complaint within 30 days.

DISCUSSION:

Motion For Leave To File A Cross-Complaint

Plaintiff The City of Los Angeles moves for leave to file a cross-complaint for implied indemnity and equitable apportionment against the upslope property owners who may have contributed to the slope’s instability by improper drainage of their property, which may have been a proximate cause of the landslide.

Defendant City of Los Angeles filed its answer to the First Amended Complaint on January 10, 2018. Defendant filed this motion less than two months later, on March 8, 2018.

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).

For purposes of CCP § 426.50, bad faith means:

actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake . . ., but by some interested or sinister motive[,] . . . not simply bad judgment or negligence, but rather . . . the conscious doing of a wrong because of dishonest purpose or moral obliquity; . . . it contemplates a state of mind affirmatively operating with furtive design or ill will. (Citations omitted.)”

Silver Orgs. v. Frank (1990) 217 Cal.App.3d 94, 100 (bold emphasis added).

“[The] principle of liberality requires that a strong showing of bad faith be made in order to support a denial of the right to file a cross-complaint under this section.” Foot’s Transfer & Storage Co. v. Superior Court (1980) 114 Cal.App.3d 897, 902 (bold emphasis 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.

But in the case at bench, we fail to perceive any substantial injustice or prejudice to the real party in interest Worth in this litigation by the filing of petitioner Foot’s Transfer & Storage’s cross-complaint, as belated as it may be [16 months after filing the answer to the complaint]. The correspondence of counsel establishes that neither side was unaware of the claims of the other. Similarly, the discovery undertaken in 1979 also indicates a lack of any such unawareness.

We hold, therefore, that the evidence to support the trial court’s denial of petitioner’s motion to file a cross-complaint was insufficient as a matter of law in view of the well established liberality with which section 426.50 of the Code of Civil Procedure is to be applied. It is preferable that the parties have their day in court.

Foot’s Transfer & Storage Co., supra, 114 Cal.App.3d 897, 903-04 (bold emphasis and underlining added).

There is no indication that Defendants acted in bad faith in waiting less than two months before seeking leave to file the proposed cross-complaint. Any argument that Cross-Defendants would suffer a substantial injustice from the less than two month delay is ludicrous.

Accordingly, the motion for leave to file an amended cross-complaint is GRANTED. A stand-alone copy of cross-complaint is to be filed today. The cross-complaint shall be deemed served as of the date of this order. Cross-Defendants are to respond to the cross-complaint within 30 days.

Moving Party to give notice, unless waived.

IT IS SO ORDERED.

Dated: April 9, 2018 ___________________________________

Randolph M. Hammock

Judge of the Superior Court