Case Number: BC689954 Hearing Date: June 25, 2019 Dept: 4A

Motion for Leave to File First Amended Cross-Complaint

Having considered the moving papers, opposition, and reply the Court rules as follows.

BACKGROUND

The instant case arises from a “slip-and fall” wherein Plaintiff Pilar Elvira Rosas (“Plaintiff”) allegedly slipped on an unsecured floor mat (“Subject Mat”) at a store owned and managed by Defendant 7-Eleven (“Defendant”) on or around July 22, 2016. Plaintiff filed her complaint on January 1, 2018, alleging one cause of action for premises liability against Defendant. On March 27, 2018 Defendant filed its Answer and Cross-Complaint against Cross-Defendant Unifirst Corporation (“Unifirst”), which was the manufacturer of the Subject Mat, alleging two causes of action for equitable indemnity and declaratory relief. Unifirst filed its Answer to Defendant’s Cross-Complaint on March 15, 2019.

Defendant filed the instant Motion for Leave to File First Amended Cross-Complaint on April 10, 2019. Defendant seeks leave to add an additional cause of action for express contractual indemnity against Unifirst. On June 11, 2019, Unifirst filed its Opposition. Defendant replied on June 17, 2019.

Jury trial is scheduled for October 11, 2019.

PARTY’S REQUEST

Defendant requests an order granting leave to amend the Cross-Complaint against Unifirst to add a cause of action for express contractual indemnity.

LEGAL STANDARD

Cross-Complaint – Under Code Civ. Proc. § 428.50(a), a party shall file a cross-complaint against any of the parties who filed the complaint or cross-complaint against him or her, the party must do so before or at the same time as the filing of the party’s answer. If the party files a cross-complaint against a third party, the cross-complainant may do so as a matter of right any time before the court has set a date for trial. (Code Civ. Proc. § 428.50(b).) However, once the court sets a date for trial, the cross-complainant must seek leave of court to file any cross-complaint against any party. (Code Civ. Proc. § 428.50(c).) This is the case even if the trial date is later vacated. (See Loney v. Superior Court (1984) 160 Cal.App.3d 719, 723.)

“A party who fails to plead a cause of action . . . whether through oversight, inadvertence, mistake, neglect, or other cause may apply to the court for leave to amend his pleading, or 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.” (Code Civ. Proc. § 426.50.)

Amend Pleadings – Code Civ. Proc. §473(a)(1) provides that the trial court may, “in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading . . . .” In exercising this discretion, trial courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” (Morgan v. Superior Court of Cal. In and For Los Angeles County (1959) 172 Cal.App.2d 527, 530.) Courts may grant a motion to amend as late as the time of trial and even postpone the trial if necessary to the furtherance of justice. (Honig v. Financial Corp. of America (1992) 6 Cal.App.4th 960, 965. ) But despite the general policy of liberality in allowing amendments, it is proper and within the discretion of the trial court to deny leave to file a proposed amendment unless the proponent of the amendment can show the amendment will not be prejudicial to other parties in the action and the delay in bringing the amendment was excusable. (Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 175.)

In deciding whether to grant a delayed motion to amend, the trial court must consider a number of factors, including (1) whether there was a lack of diligence in discovering the facts or in offering the amendment after knowledge of them; and (2) the effect of the delay on the adverse party. If the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the judge has discretion to deny leave to amend. (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.) Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, or added costs of preparation such as an increased burden of discovery. (Magpali v. Farmers Group, Inc. (1996) 47 Cal.App.4th 471, 487–88, as modified on denial of reh’g (Aug. 20, 1996).) While a trial court may deny a proposed amendment for failure to state a cause of action, it is still proper for a trial court to deny an amendment if there is an unexplained delay in moving to amend, even if the complaint states a cause of action. (Huff v. Wilkins (2006) 138 Cal.App.4th 732, 746, as modified (Apr. 26, 2006).)

DISCUSSION

Here, it appears to the Court that the subject matter of Defendant’s proposed amendment to its Cross-Complaint arises out of the same occurrence that is the subject matter of the action brought by Plaintiff. As explained below, the Court finds Defendant’s proposed amendment to be proper in the instant action.

First, Defendant moves for this amendment after discovering additional facts regarding its contractual relationship with Unifirst and Unifirst’s liability under the terms of the contract. Defendant argues that the information regarding Unifirst’s liability for the accident was recently discovered through further investigation and discovery of the relevant contract between Defendant and Unifirst. (Motion 6:25–27.) Defendant filed its original Cross-Complaint against on March 28, 2018 against “Roe 1,” and later amended the fictitious name to the true name of “Unifirst Corporation” on January 16, 2019. The original Cross-Complaint alleged actions of general indemnity. This amendment to include “Express Contractual Indemnity” could only be asserted against Unifirst once (1) the corporation’s identity was known to Defendant and (2) the contract between Defendant and Unifirst was reviewed. Since Defendant timely asserted its Cross-Complaint with its Answer under general principles of indemnity and later discovered the contours of its contractual relationship with Unifirst, the Court finds Defendant’s failure to include the cause of action for Express Contractual Indemnity in the original Cross-Complaint to arise from excusable inadvertence.

Second, the Court considers whether the effect of the delay in presenting this cause of action against Unifirst is too prejudicial to allow. Here, Unifirst argues that Defendant’s delay in moving to amend its Cross-Complaint is dilatory and will result in undue prejudice, since it must now complete “extensive investigation of whether the floor mat was provided by Unifirst.” (Opposition 4:21–24.) The Court is not sympathetic to this argument. Discovery to determine whether the floor mat was provided by Unifirst appears to be a central defense to Defendant’s original Cross-Complaint, under its equitable indemnity and declaratory relief causes of actions.

Thus, it appears to the Court that Unifirst will not be prejudiced by undue additional cost or delay in the discovery of critical evidence necessary to presenting a defense to the amended Cross-Complaint.

Accordingly, the Court GRANTS Defendant leave to file its amended cross-complaint, which shall be filed within ten days of the Court’s ruling.

Defendant is ordered to give notice of the Court’s ruling.