On 02/15/2018 J B WHOLESALE ROOFING BUILDING SUPPLIES, INC filed a Contract - Debt Collection lawsuit against NAIM FAKHIRI. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is GEORGINA T. RIZK. The case status is Pending - Other Pending.
Pending - Other Pending
Stanley Mosk Courthouse
Los Angeles, California
GEORGINA T. RIZK
J.B. WHOLESALE ROOFING & BUILDING SUPPLIES INC.
GREAT AMERICAN INSURANCE COMPANY
RICHTER ROOFING CO.
LOEB STEVEN SCOTT
CAMPBELL NICHELO MICHAEL
GRAY GARY STEPHEN
7/18/2019: Stipulation and Order (name extension) - Stipulation and Order to Continue Trial
3/12/2018: Notice (name extension) - of Pending Action
7/19/2018: Demand for Jury Trial
6/5/2018: Proof of Personal Service
6/5/2018: Proof of Personal Service
4/24/2018: Summons - on Cross Complaint
2/15/2018: Summons - on Complaint
2/15/2018: Civil Case Cover Sheet
Hearingat 08:30 AM in Department 94 at 111 North Hill Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of ServiceRead MoreRead Less
Hearingat 08:30 AM in Department 94 at 111 North Hill Street, Los Angeles, CA 90012; Non-Jury TrialRead MoreRead Less
DocketStipulation and Order to Continue Trial; Signed and Filed by: Richter Roofing Co., (Cross-Defendant); Great American Insurance Company (Cross-Defendant)Read MoreRead Less
DocketPursuant to written stipulation, Non-Jury Trial scheduled for 08/15/2019 at 08:30 AM in Stanley Mosk Courthouse at Department 94 Not Held - Continued - Stipulation was rescheduled to 11/18/2019 08:30 AMRead MoreRead Less
DocketAnswer; Filed by: Mark Richter (Cross-Defendant)Read MoreRead Less
DocketAnswer; Filed by: Richter Roofing Co., (Cross-Defendant)Read MoreRead Less
DocketDemand for Jury Trial; Filed by: Richter Roofing Co., (Cross-Defendant)Read MoreRead Less
DocketAnswer; Filed by: Great American Insurance Company (Cross-Defendant)Read MoreRead Less
DocketProof of Personal Service; Filed by: J.B. Wholesale Roofing & Building Supplies, Inc. (Plaintiff); As to: Naim Fakhiri (Defendant); Service Date: 05/27/18; Service Cost: 0.00; Service Cost Waived: NoRead MoreRead Less
DocketProof of Personal Service; Filed by: Naim Fakhiri (Defendant); As to: Naim Fakhiri (Defendant); Service Date: 05/27/18; Service Cost: 0.00; Service Cost Waived: NoRead MoreRead Less
DocketSummons on Cross Complaint; Issued and Filed by: ClerkRead MoreRead Less
DocketAnswer; Filed by: Naim Fakhiri (Defendant)Read MoreRead Less
DocketNotice of Pending Action; Filed by: J.B. Wholesale Roofing & Building Supplies, Inc. (Plaintiff)Read MoreRead Less
DocketComplaint; Filed by: J.B. Wholesale Roofing & Building Supplies, Inc. (Plaintiff); As to: Naim Fakhiri (Defendant)Read MoreRead Less
DocketCivil Case Cover Sheet; Filed by: J.B. Wholesale Roofing & Building Supplies, Inc. (Plaintiff)Read MoreRead Less
DocketSummons on Complaint; Issued and Filed by: ClerkRead MoreRead Less
DocketNotice of Case Assignment - Limited Civil Case; Filed by: ClerkRead MoreRead Less
DocketCase assigned to Hon. Georgina T. Rizk in Department 77 Stanley Mosk CourthouseRead MoreRead Less
DocketNon-Jury Trial scheduled for 08/15/2019 at 08:30 AM in Stanley Mosk Courthouse at Department 77Read MoreRead Less
DocketOrder to Show Cause - Failure to File Proof of Service scheduled for 02/18/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 77Read MoreRead Less
Case Number: 18STLC02541 Hearing Date: July 14, 2020 Dept: 26
J.B. Wholesale Roofing and Building Supplies, Inc. v. Fakhiri, et al.
MOTION FOR LEAVE TO FILE CROSS-COMPLAINT
(CCP § 428.50)
Richter Roofing, Inc.’s Motion for Leave to File Cross-Complaint is GRANTED. Cross-Complaint to be filed within 20 days’ notice of order.
On February 15, 2018, Plaintiff J.B. Wholesale Roofing and Building Supplies, Inc. (“Plaintiff”) filed the instant action for foreclosure of mechanic’s lien against Defendant Naim Fakhiri (“Fakhiri”). On April 24, 2018, Fakhiri filed a Cross-Complaint for breach of contract, breach of warranty and indemnity against Cross-Defendants Richter Roofing, Inc. (“Richter Roofing”), Mark Richter, and Great American Insurance Company (“Cross-Defendants”). On November 1, 2019, the Court denied Richter Roofing’s ex parte application for leave to file a Cross-Complaint and to reclassify the action as an unlimited civil case.
Richter Roofing filed the instant Motion for Leave to File Cross-Complaint on November 8, 2019. To date, no opposition has been filed.
On March 23, 2020, Plaintiff dismissed the Complaint with prejudice, leaving only the Cross-Complaint by Fakhiri against Cross-Defendants.
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.)
This Motion is brought pursuant to subdivision (c), which “addresses all other cross-complaints and provides that they can only be filed with leave of court which may be granted ‘in the interest of justice at any time during the course of the action.’ [Citation.]” (Id.) Cross-Defendant Richter Roofing, Inc. moves for leave to file a Cross-Complaint against Fakhiri on the grounds that Richter Roofing has satisfied the claim brought by Plaintiff and is entitled to recover that money from Fakhiri, the owner of the property, under the warranty issued for the construction project. (Motion, Richter Decl., ¶¶1-9.) Richter Roofing only moves to file a Cross-Complaint now that an informal resolution with Fakhiri has been refused. (Id. at ¶¶8-9.) The proposed Cross-Complaint alleges breach of contract, common counts, and declaratory relief against Fakhiri. (Ex Parte App., filed 10/30/19, Exh. 1.)
The Motion demonstrates that the proposed cross-claims against Fakhiri arise from the same operative facts as the claims in the Complaint. Namely, all the claims arise out of the roofing project at Fahiri’s property. (Ibid.) Finally, the facts giving rise to the proposed Cross-Complaint arose shortly before the filing of this Motion upon Richter Roofing’s payment of Plaintiff’s claim and inability to settle with Fakhiri, demonstrating that the Motion was timely filed.
Based on the foregoing, Richter Roofing, Inc.’s Motion for Leave to File Cross-Complaint is GRANTED. The Cross-Complaint is to be filed within 20 days’ notice of order.
To the extent Richter Roofing, Inc. contends that the proposed Cross-Complaint would reclassify the action as an unlimited civil case, this is permissible under Code of Civil Procedure section 403.030 upon satisfaction of the following conditions: “[t]he caption of the cross-complaint shall state that the action or proceeding is a limited civil case to be reclassified by cross-complaint, or words to that effect. The party at the time of filing the cross-complaint shall pay the reclassification fees provided in Section 403.060, and the clerk shall promptly reclassify the case.”
Moving party to give notice.
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