Case Number: BC654965 Hearing Date: March 20, 2018 Dept: 92

OREN BEN HAMO,

Plaintiff,

vs.

YIZTHAK ABOUKRAT, et al.,

Defendant

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Case No.: BC654965

[TENTATIVE] ORDER GRANTING MOTION FOR LEAVE TO FILE CROSS-COMPLAINT

Dept. 92

1:30 p.m.

March 20, 2018

1. Background Facts

Plaintiff, Oren Ben Hamo filed this action against Defendants, Yizthak Aboukrat, Ellen Aboukrat, and EZ Deals for damages arising out of an assault and battery that occurred on 4/14/16. Plaintiff filed his complaint on 3/23/17, and Defendants filed their answer on 4/21/17.

2. Motion for Leave to File Cross-Complaint

At this time, Defendant, Yizthak Aboukrat moves for leave to file a cross-complaint against Plaintiff for assault and battery arising out of the same incident that forms the basis of the complaint. Plaintiff opposes the motion, arguing (a) the motion is not made in good faith, and (b) the motion was not timely or properly served on Plaintiff.

a. Standard for Granting Leave to File a Compulsory Cross-Complaint

Both parties agree that the cross-complaint at issue is compulsory in nature, as it relates to the same event that forms the basis of the complaint, and is between the two parties who are already party to the action.

A cross-complaint against any of the parties who filed the initial complaint or cross-complaint against the cross-complainant must be filed before or at the same time as the answer to the initial complaint or cross-complaint, which answer must be filed within 30 days of service of the complaint or cross-complaint. CCP §§412.20(a)(3), 428.50(a), 432.10. If a party fails to file a cross-complaint within the applicable time limits, s/he must obtain permission from the court to file the cross-complaint. CCP §§426.50, 428.50(c). In such a case, and after notice to the adverse party, the court must grant permission to file the cross-complaint on such terms as may be just to the parties if the party who failed to file the cross-complaint acted in good faith. CCP §426.50. CCP §426.50 is liberally construed to avoid forfeiture of causes of action. Thus, a motion to file a compulsory 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. Silver Organizations Ltd. v. Frank (1990) 217 Cal.App.3d 94.

Additionally, the determination that the moving party acted in bad faith must be supported by substantial evidence. Id; Foot’s Transfer & Storage Co. v. Superior Court (1980) 114 Cal.App.3d 897 [evidence insufficient to support trial court’s denial of motion to file cross-complaint notwithstanding that defendant waited 23 months after service of complaint and 16 months after filing answer before asserting right to file cross-complaint, where nothing in record suggested that defendant was unusually reprehensible with regard to delay, plaintiff waited for two years to file action, and plaintiff’s counsel equivocated concerning stipulation allowing the filing of cross-complaint at same time counsel conducted discovery concerning the claim defendant sought to assert in the cross-complaint].

It should be noted that there is a conflict between courts of appeal as to the amount of discretion, if any, that a trial court may exercise in granting permission to file an untimely compulsory cross-complaint. Three opinions from the Second District Court of Appeal have interpreted the good faith requirement as allowing the trial courts a modicum of discretion in granting permission to file a late compulsory cross-complaint. Gherman v. Colburn (1977) 72 Cal.App.3d 544, 559; Foot’s Transfer & Storage Co.. supra, 114 Cal.App.3d at pp. 902-903; Sidney v. Superior Court (1988) 198 Cal.App.3d 710, 718. In contrast, the First District Court of Appeal rejected the view that the trial court may exercise discretion in the denial of a motion to file a compulsory cross-complaint. Silver Organizations Ltd., supra, 217 Cal.App.3d at p. 98. Regardless of the split of authority, at minimum a very strong showing of bad faith on the part of the defendant is required before a court will be justified in denial of leave to file or amend a cross-complaint. Sidney v. Superior Court, supra, 198 Cal.App.3d at 718.

b. Analysis of Good/Bad Faith

Plaintiff herein argues Defendant failed to make an adequate showing of good faith in connection with the moving papers. Plaintiff, however, is improperly attempting to shift the burden concerning this showing. Per the above authorities, the burden is on Plaintiff to establish bad faith, not on Defendant to establish good faith.

Plaintiff’s only argument in support of his position that the motion is made in bad faith is Plaintiff’s contention that Defendant improperly delayed in filing his motion; specifically, Plaintiff contends the facts supporting the motion appear in Defendant’s answer to the complaint and discovery responses. Plaintiff fails, however, to show that delay, standing alone, can constitute “bad faith.” Notably, the case is not set for trial until 9/24/18.

Plaintiff also suggests that Defendant’s motion is made in bad faith because he is seeking to derail settlement discussions by way of his motion. This argument, however, is supported only by the Declaration of Plaintiff’s attorney, who avers that it “became apparent,” during settlement discussions, that the purpose of this motion is to derail settlement. The Court cannot find “bad faith” from this conclusory statement.

Plaintiff failed to meet his burden to establish bad faith, and therefore the motion cannot be denied on this ground.

c. Service of Moving Papers

Defendant filed proof of service, which indicates the papers were timely served by mail and e-mail on 2/13/18. Plaintiff, in opposition to the motion, indicates he only received the papers via e-mail, and the parties have not agreed to electronic service. It is not clear why the proof of service indicates the papers were served by U.S. Mail if they were not actually so served. At most, the Court would be inclined to continue the hearing on the motion in light of this potential defect. However, because Plaintiff fully briefed the substantive issues concerning the motion, the Court finds a continuance would only serve to delay resolution of the case between the parties.

d. Conclusion

Defendant’s motion for leave to file a cross-complaint is granted. Defendant is ordered to file a separate copy of the cross-complaint within five days. The cross-complaint is deemed served on Plaintiff as of today’s hearing date. Plaintiff is ordered to file a responsive pleading within thirty days of today’s hearing date.