2018-00231974-CU-PA

Bassam Saleem vs. Joe Henry McKinley

Nature of Proceeding: Motion to File Cross-Complaint

Filed By: Islas, Julia V.

Defendants Joe Henry McKinley II and Ashley McKinley’s (together, “Defendants”) Motion for Leave to File a Cross-Complaint is GRANTED.

This action arises from a motor vehicle accident, which occurred on May 1, 2016. Plaintiffs Bassam Saleem, Alam Bahnan, Mirna Elia, Martin Elia, Marfin Elia, and Majd Elia, by and through his guardian ad litem Bassam Saleem (together, “Plaintiffs”) filed their Complaint on April 27, 2018, alleging that the four-vehicle collision and their resulting injuries were caused by Mr. McKinley’s unsafe lane change. They further named Mr. McKinley’s employer, AT&T Corp., as a defendant.

On June 18, 2018, Defendants answered the Complaint. On August 9, 2018, Defendants filed a Notice of Change in Handling Attorney, notifying the Court and parties that a different attorney in the same law firm would handle the matter. (RJN Ex. C.)

Defendants now seek leave of Court to file a Cross-Complaint against Plaintiff Bassam Saleem (“Mr. Saleem”). Defendants assert that their new attorney determined that Mr. Saleem was comparatively negligent in the accident. They argue good cause exists for leave to file a Cross-Complaint against Mr. Saleem, which will assert claims for indemnity and contribution. These claims will become relevant in the event that Mr. McKinley is found liable to the other Plaintiffs. Defendants contend that the Cross-Complaint will ensure that fault will be equitably apportioned.

Plaintiffs oppose the motion. They argue that Defendants’ reason for delay is insincere, as the same law firm has been representing Defendants and aware of the facts since the case’s inception. Plaintiffs further argue that a cross-complaint is not necessary to apportion fault, as Defendants may seek apportionment in post-trial proceedings. Plaintiffs assert that the interests of justice weigh against granting the motion, as the Plaintiffs are in a “special relationship” because they are all members of the same nuclear family. They argue that the Cross-Complaint would create unnecessary conflict between Mr. Bassam and his family.

No trial date has been set in this action.

Pursuant to CCP § 428.50, where, as here, a party fails to file a cross-complaint before filing an answer to the complaint, that party shall obtain leave of Court to file a cross-complaint. Leave may be granted in the interest of justice at any time during the course of the action. (CCP § 428.50(c).) A cross-complaint may be filed any time before the Court has set a date for trial. (CCP § 428.50(b).)

Here, the action was filed in April 2018 and no date has been set for trial. Pursuant to

the statutory authority set forth above, the motion is timely. Moreover, the Court finds that it is in the interests of justice to grant leave for Defendants to file the Cross-Complaint. Defendants assert that the officer responding to the subject accident found that Mr. Saleem’s “unsafe speed” was an associated factor in causing the collision. (Islas Decl. ¶3.) Through their proposed Cross-Complaint, Defendants can seek equitable apportionment of fault for the subject accident.

The Court further finds that the motion has been brought in good faith. (Id. ¶4.) While Defendants’ brief delay in seeking to file a Cross-Complaint is not wholly explained by the change in counsel, the Court finds that permitting Defendants to file the Cross-Complaint will cause no discernible prejudice to Plaintiffs, as the case was recently filed and trial is not yet set. Moreover, it has only been a few months since Defendants’ Answer was filed, and Defendants are entitled to seek indemnity and contribution.

Based on the foregoing, the motion is granted.

Plaintiffs’ Request for Judicial Notice is granted.

The Cross-Complaint shall be filed and served no later than October 26, 2018.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.