FARZANEH AZIZIAN VS ABM INDUSTRY GROUP LLC, ET AL.

Tentative Rulings

Case Number: 19STLC04196    Hearing Date: March 01, 2021    Dept: 26

Case Number: 19STLC10116    Hearing Date: March 01, 2021    Dept: 26

Soriano, et al. v. Castillo, et al.

MOTION FOR LEAVE TO FILE CROSS-COMPLAINT

(CCP §§ 426.50, 428.50)

TENTATIVE RULING:

Defendants Yefrin Castillo and Ashley Pena’s Motion for Leave to File Cross-Complaint is GRANTED. THE CROSS-COMPLAINT IS TO BE FILED AND SERVED WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

ANALYSIS:

On November 1, 2019, Plaintiffs Nelson Soriano and Virna Justo (“Plaintiffs”) filed the instant action for motor vehicle negligence against Defendant Yefrin Castillo (“Defendant Castillo”). On December 30, 2019, Plaintiff added Ashely Pena (“Defendant Pena”) as a defendant by “Doe” amendment.

Defendants jointly filed an Answer on April 17, 2020. On August 25, 2020, Defendants filed the instant Motion for Leave to File Cross-Complaint. To date, no opposition has been filed.

Discussion

Code of Civil Procedure section 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.”

(Code Civ. Proc., § 428.50.) Furthermore, “[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.” (Code Civ. Proc., § 426.50, emphasis added.)

The Court of Appeals has explained: “The legislative mandate is clear. A policy of liberal construction of section 426.50 to avoid forfeiture of causes of action is imposed on the trial court. 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 Organizations Ltd. v. Frank (1990) 217 Cal.App.3d 94, 98–99.) “‘‘Bad faith,’ is defined as ‘[t]he opposite of ‘good faith,’ generally implying or involving 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. [Citation.]’ [Citations.]’ [Citation.]” (Id. at 100.)

In moving for leave to file a Cross-Complaint against Plaintiff Soriano, Defendants argue they are not acting in bad faith. (Motion, Garcia Decl., ¶¶5, 7.) Rather, after filing their Answer, Defendants engaged in discovery and further discussions about the circumstances of the motor vehicle accident and determined that a cross-complaint against Plaintiff Soriano was appropriate. (Id. at ¶6.) The proposed Cross-Complaint is attached to the Motion and alleges causes of action for contribution, indemnity, and declaratory relief. (Id. at Exh. A.)

Defendants’ Motion demonstrates that the proposed cross-claims against Plaintiff Soriano arise from the same operative facts as the claims in the Complaint. Nor is there any indication that the proposed cross-claims are raised in bad faith. Leave to file the Cross-Complaint is appropriate.

Conclusion

Defendants Yefrin Castillo and Ashley Pena’s Motion for Leave to File Cross-Complaint is GRANTED. THE CROSS-COMPLAINT IS TO BE FILED AND SERVED WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

Moving party to give notice.

Case Number: 19STLC04196    Hearing Date: January 11, 2021    Dept: 26

MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR ADMISSION; REQUEST FOR SANCTIONS

(CCP § 2033.290)

TENTATIVE RULING:

Defendants ABM Industry Groups, LLC and Oscar Rodas Quijada’s Motion to Compel Further Responses to Requests for Admission and Request for Sanctions is CONTINUED TO MARCH 1, 2021 AT 10:00 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

ANALYSIS:

On April 29, 2019, Plaintiff Farzaneh Azizian (“Plaintiff”) filed this action against Defendants ABM Industry Groups, LLC, Oscar Rodas Quijada and Saks Beverly Hills, LLC (“Defendants”) for motor vehicle negligence. On August 21, 2020, Defendants cross-complained for motor vehicle negligence.

On November 3, 2020, Defendants ABM and Quijada (“Moving Defendants”) filed the instant Motion to Compel Further Responses to Requests for Admission and Request for Sanctions.  Plaintiff filed an opposition on December 28, 2020.

Discussion

Notice of the motion to compel further must be given “within 45 days of service of the verified response, or any supplemental verified response, or any specific later date to which the requesting party and the responding party have agreed in writing,” otherwise, the propounding party waives any right to compel a further response. (Code Civ. Proc., § 2030.300, subd. (c).) Here, Plaintiff’s initial responses were served by electronic mail on September 15, 2020. (Motion, Kalooky Decl., Exh. C.) The Notice of Motion and Motion to Compel Further Responses were timely served on November 3, 2020. (Proof of Service, filed 11/3/20.)

The motion must also be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2030.300, subd. (b).) Defense counsel sent a meet and confer letter on October 29, 2020, to which Plaintiff’s counsel responded on November 2, 2020. (Motion, Kalooky Decl., Exhs. E-F.) Defendants did not respond again until December 10, 2020, after this Motion had been filed. (Id. at Exh. G.) In light of this evidence, the Court finds that the meet and confer requirement is satisfied.

Third, Cal. Rules of Court Rule 3.1345 requires all motions or responses involving further discovery to attach a separate statement with the text of each request, the response, and a statement of factual and legal reasons for compelling further responses. (Cal. Rules of Court, Rule 3.1345, subd. (a).) A separate statement was filed in connection with the Motion to Compel Further Responses.

Finally, the Court addresses the substance of the instant Motion to Compel Further Responses and Request for Sanctions. The Motion turns on the limitations set forth in Code of Civil Procedure section 94, subdivision (a), which specifically provides “[a]s to each adverse party, a party may use the following forms of discovery: (a) Any combination of 35 of the following:

(1) Interrogatories (with no subparts) under Chapter 13 (commencing with Section 2030.010) of Title 4 of Part 4.” (Code Civ. Proc., § 94, subd. (a)(1).) Contrary to Plaintiff’s claim in opposition, no informal discovery conference is required in the Limited Jurisdiction Court.

In serving multiple sets of discovery on Plaintiffs, Moving Defendants served Form Interrogatories, Special Interrogatories, Requests for Admission and Requests for Production. (Motion, Kalooky Decl., ¶5.) The Form Interrogatories of both Moving Defendants, however, improperly include subparts in contravention of the limited jurisdiction discovery statute. (Opp., Azizian Decl., Exh. A.) In fact, there are specific form interrogatories approved by the Judicial Council for use in the Limited Jurisdiction Court that do not contain subparts. (Option Judicial Council Form Disc-004.) In comparison, the General Form Interrogatories form does contain subparts and is inappropriate for use in a limited jurisdiction case.

In responding to the written discovery, Plaintiff treated each subpart to the form interrogatories as a separate request that counted towards the 35-request limit. (Motion, Kalooky Decl., Exhs. E-F.) Plaintiff responded to the first 35 interrogatory subparts and objected to the remainder of the discovery, including the remaining interrogatories, requests for admission and requests for production. (Ibid.) Among Plaintiff’s objections to the remaining discovery requests were that Defendants served more than the permitted number of requests. (Ibid.)

There is no case law addressing the circumstances presented by this dispute. Defendants’ reference to Fink v. Moreno, Becerra & Guerrero, Inc. (2008) 2008 WL 2154074 (without even a page citation to guide the Court) is unhelpful because not only is it an unpublished case, but also because the discovery objections therein do not pertain to the limitations set forth in Code of Civil Procedure section 94 or the use of subparts in the Limited Jurisdiction Court. (Fink v. Moreno, Becerra & Guerrero, Inc. (2008) 2008 WL 2154074, *10.)

The Court finds both parties to conduct contributed to the dispute raised in this Motion. Defendants were obligated to comply with the requirements of Code of Civil Procedure section 94 by serving Form Interrogatories with no subparts, but mistakenly failed to do so. Plaintiff’s response to the Form Interrogatories improperly sought to take advantage of that mistake. It is no excuse, as Plaintiff makes, that he was under no obligation to inform Defendants that the Form Interrogatories were improper. One of the main purposes of the Discovery Code is to eliminate gamesmanship (Monarch Healthcare v. Superior Court  Act is to eliminate gamesmanship and streamline judicial involvement over discovery minutiae.”].) The Court cannot condone Plaintiff’s attempt to characterize each subpart of the Form Interrogatories as a whole interrogatory in order to avoid answering further discovery. On the other hand, it would be unfair to allow Defendants to obtain more information from the use of form interrogatories with subparts than provided for in form interrogatories without subparts.

Therefore, the Court orders the parties to prepare a joint statement correlating the information sought in the general Form Interrogatories served on Plaintiff with the Limited Jurisdiction Form Interrogatories that cover the same topics. The joint statement is to be supported by a meet and confer declaration and relevant exhibits demonstrating the good faith preparation of the joint statement. Based on the joint statement, the Court will make a determination regarding the number of Form Interrogatories that have been served on Plaintiff and whether the limitations set forth in Code of Civil Procedure section 94 have been reached. The Court will not consider any further opposing briefs on this issue; only a joint statement is to be filed. Failure to comply with the Court’s order may result in the imposition of sanctions pursuant to Code of Civil Procedure section 177.5 on any non-complying person. The joint statement is to be filed within 30 days service of this order.

Conclusion

Defendants ABM Industry Groups, LLC and Oscar Rodas Quijada’s Motion to Compel Further Responses to Requests for Admission and Request for Sanctions is CONTINUED TO MARCH 1, 2021 AT _____ AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

Moving party to give notice.