YURI FRIDMAN VS GUILLERMO BAUTISTA

Tentative Rulings

Case Number: 19STLC04487    Hearing Date: July 30, 2020    Dept: 25

HEARING DATE: Thu., July 30, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Fridman v. Bautista COMPL. FILED: 05-08-19

CASE NUMBER: 19STLC04487 DISC. C/O: 02-01-21

NOTICE: OK MOTION C/O: 02-16-21

PROCEEDINGS: MOTION FOR LEAVE TO FILE CROSS-COMPLAINT

MOVING PARTY: Defendant Guillermo Bautista

RESP. PARTY: None

MOTION FOR LEAVE TO FILE CROSS-COMPLAINT

(CCP § 428.50)

TENTATIVE RULING:

Defendant Guillermo Bautista’s Motion for Leave to File Cross-Complaint is GRANTED. CROSS-COMPLAINT TO BE FILED WITHIN TEN (10) DAYS OF THIS ORDER.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: None filed as of July 28, 2020 [ ] Late [X] None

REPLY: None filed as of July 28, 2020 [ ] Late [X] None

ANALYSIS:

1. Background

On May 8, 2019, Plaintiff Yuri Fridman (“Plaintiff”) filed an action for motor vehicle negligence and general negligence against Defendant Guillermo Bautista (“Defendant”). On November 18, 2019, Defendant filed an Answer.

On February 18, 2020, Defendant filed the instant Motion for Leave to File Cross-Complaint (the “Motion”). To date, no opposition has been filed.

1. Legal Standard

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.)

“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.)

1. Discussion

Here, Defendant filed an Answer on November 18, 2019, and a trial date has already been set. However, leave to file a cross-complaint may still be granted in the interest of justice. (Code Civ. Proc., § 428.50, subd. (c).)

Defendant’s proposed Cross-Complaint alleges a motor vehicle negligence cause of action against Plaintiff and arises from the same set of operative facts that gave rise to the Complaint. (Mot., Hambarchyan Decl., ¶ 2, Exh. A.) Specifically, the Complaint alleges that, on July 5, 2019, Defendant attempted to make an unsafe lane change and as a result, collided into Plaintiff’s vehicle. (Compl., p. 5, ¶ GN-2.) In moving for leave to file a Cross-Complaint, Defendant argues that Plaintiff was negligent and that Plaintiff collided into Defendant’s vehicle. (Mot., Hambarchyan Decl., ¶ 2, Exh. A, p. 4, ¶ MV-1.) In addition, Defendant’s counsel provides a declaration stating that, due to their inexperience, mistake, inadvertence, and excusable neglect, counsel did not concurrently file the Cross-Complaint with the Answer. (Mot., Hambarchyan Decl., ¶ 5.)

Trial remains scheduled for March 3, 2021, allowing the parties ample time to prepare. In addition, Plaintiff has not filed an opposition to this Motion. Thus, Defendant’s Motion is GRANTED.

1. Conclusion & Order

For the foregoing reasons, Defendant Guillermo Bautista’s Motion for Leave to File Cross-Complaint is GRANTED. CROSS-COMPLAINT TO BE FILED WITHIN TEN (10) DAYS OF THIS ORDER.

Moving party is ordered to give notice.