Case Number: EC060312 Hearing Date: February 13, 2015 Dept: NCD
MOTION FOR LEAVE TO FILE CROSS-COMPLAINT

TENTATIVE RULING
#1
EC 060312
IRVIN v. KHLON

Defendants’ Motion for Leave to File Cross-Complaint

TENTATIVE:
Motion for leave to file cross complaint is GRANTED. The original signed cross-complaint is to be provided for filing with the court by the close of business today.

BACKGROUND:
MP: Defendants Martha Sieh-Yu and Susan Sieh-Chu Hsu
RP: Plaintiff Tamara Movsesyan (NO OPPOSITION)

RELEVANT FACTS:
Plaintiff Tamara Movsesyan brings this action against her residential landlords, defendants Martha Sieh-Yu Hsu and Susan Sieh-Chu Hsu, alleging that during her tenancy she discovered mold and mildew infestation, which defendants failed to remedy.

ANALYSIS:
Under CCP §428.10, a party to a complaint may file a cross-complaint setting forth “any cause of action he has against a person alleged to be liable” under the complaint, “whether or not such person is already a party to the action… if the cause of action asserted in his cross-complaint… arises out of the same transaction or occurrence as the cause brought against him.” A cross-complaint against the party who filed the complaint shall be filed “at the same time as the answer to the complaint….” CCP §428.50 (a). If a cross-complaint is not filed within this time, “a party shall obtain leave of court” to file the cross-complaint and “leave may be granted in the interest of justice at any time during the course of the action.” CCP § 428.50(c).

Under CCP section 426.30, where the cross complaint is compulsory, and the party fails to assert it “such party may not thereafter in any other action assert against the plaintiff the related cause of action not pleaded.” Under §426.50, the court may grant relief from this failure by permitting leave to file or amend a cross-complaint:
“A party who fails to plead a cause of action subject to the requirements of this article, whether through inadvertence, mistake, neglect, or other cause, may apply to the court for leave …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 …file the cross complaint 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.”

In order to deny the filing of a pleading or amended pleading in such a case, the court must find that substantial evidence supports a finding that the moving party acted in bad faith. Silver Organization, Ltd v. Frank, (1990) 217 Cal.App.3d 94.

In this case, the action was filed in March of 2013, and defendants on September 17, 2014 filed their answer, but now seek leave to file a cross-complaint against plaintiff and her son, Poghos Kazarian, based on the fact that these parties have not been paying the rent under the lease, despite repeated promised to do so. Defendants argue that since the cross-complaint arises out of the same set of facts and circumstance, involves the same property, and some of the same people, the issues raised should be decided within this action.

Since this is a compulsory cross-complaint, the court should liberally permit filing as long as the party acted in good faith. The case is currently set to begin trial on March 15, 2015. It appears that the current trial date might not remain fixed as the file shows that the court recently granted a motion brought by plaintiff’s counsel to withdraw as attorney of record, and counsel was relieved effective January 21, 2015.

Generally, the declaration of counsel should show that it would be in the interest of justice to grant leave to file, including some reasonable excuse why the cross-complaint was not filed earlier, such as mistake, inadvertance, excusable neglect or recent discovery of new facts. Weil & Brown, 6:562.

In this case, counsel’s declaration concedes that counsel became aware that the tenants were not paying rent in January of 2014. [Lebow Decl., para. 8]. However, counsel thereafter corresponded with plaintiff’s counsel, was assured the issue was being addressed, and agreed to postpone the filing of a cross-complaint while the parties attended a mandatory settlement conference in November. [Paras. 10-19]. Counsel has since been attempting to obtain a stipulation permitting the filing of the cross-complaint, which has not been forthcoming. [Paras. 21-24]. Although this situation is not ideal, there are no facts suggesting that by the delay defendants are seeking to gain a tactical advantage, and since there is no opposition, there is no substantial evidence showing that defendants are acting in bad faith.

Overall, this appears to be a legitimate compulsory cross-complaint, and the court has a strong interest in having all of this determined now, rather than entertaining leave to amend to conform to proof. In addition, there is no opposition to the motion, so no showing of prejudice to plaintiff. The motion is granted.