SAEED ABOLGHASEMI VS IVANIA PINEDA

Tentative Rulings

Case Number: 19STLC02382    Hearing Date: December 05, 2019    Dept: 94

MOTION FOR LEAVE TO FILE CROSS-COMPLAINT

(CCP § 428.50)

TENTATIVE RULING:

Defendant Ivania Pineda’s Motion for Leave to File Cross-Complaint is GRANTED. CROSS-COMPLAINT TO BE FILED WITHIN TEN (10) DAYS.

SUMMARY OF COMPLAINT: Action for motor vehilcle negligence.

REQUEST FOR RELIEF: Grant Defendant leave to file compulsory cross-complaint on the grounds that a Cross-Complaint was not filed earlier due to counsel’s mistake and inadvertence.

OPPOSITION: The mistake of Defendant’s two attorneys in failing to communicate about the filing of the Cross-Complaint should not be at Plaintiff’s expense.

REPLY: None filed as of December 2, 2019.

ANALYSIS:

On March 7, 2019, Plaintiff Saeed Abolghasemi (“Plaintiff”) filed the instant action for motor vehicle negligence against Defendant Ivania Pineda (“Defendant”). Defendant filed her Answer on April 25, 2019. On August 1, 2019, Defendant filed the instant Motion for Leave to File Cross-Complaint. Plaintiff filed his opposition on November 18, 2019.

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.) 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.)

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.)

As attested to by Defendant’s counsel, and conceded by Plaintiff, the failure to file a Cross-Complaint at the time Defendant answered was the result of her attorneys’ mistake and inadvertence. (Motion, Patel Decl., ¶¶2-4.) Specifically, the attorneys Defendant hired to file a claim with her insurance company and the attorney Defendant hired to defend this action failed to communicate about the need to file a Cross-Complaint. (Ibid.) Plaintiff’s opposition admits to these circumstances and makes no argument that the request to file a Cross-Complaint is in bad faith. (Opp., pp. 1-3.) Plaintiff simply argues in opposition that he should not be at his expense. Yet, what “expense” is to be had by the filing of the Cross-Complaint is not explained. Plaintiff does not argue, let alone provide evidence, that he will be prejudiced by the filing of the Cross-Complaint. Trial in this matter is not scheduled until September 3, 2020 providing the parties ample time to prepare. Plaintiff, therefore, offers no legal basis to deny the motion.

Defendant’s Motion for Leave to File Cross-Complaint is GRANTED. Cross-Complaint to be filed within ten (10) days.

Moving party to give notice.