TRESSA BLAS, A MINOR, ET AL. VS. JOEY CERRULE, ET AL.

Tentative Rulings

Case Number: BC588207    Hearing Date: October 20, 2020    Dept: S27

1. Background Facts

   Plaintiff, Tressa Blas, a minor by and through her GAL, Wilma Blas, filed this action against Defendants, Joey Cerrule, Alexa Bryson, Nike Golf Schools and Junior Camps, Nike Golf Learning Centers, U.S. Sports Camps, Inc., American Golf Corporation, and the City of Long Beach for damages arising out of personal injuries sustained when Bryson, a participant at a golf camp with Plaintiff, struck her with an errand golf club.

   Plaintiff filed her complaint on 7/16/15. U.S. Sports Camps (“USSC”) and Nike Golf Schools filed their answer on 8/18/15. The same day, they filed a cross-complaint against Cerrule, Bryson, American Golf Corporation, and the City for indemnification and related claims.

   American Golf Corporation (“AGC”), Nike Golf Learning Centers, and the City of Long Beach filed their answer on 8/21/15.

   Joseph Cerulle filed an answer on 8/01/16. Defendant, Alexa Bryson filed an answer and cross-complaint on 8/19/16.

   On 9/08/17, the Court granted summary judgment in favor of Defendants, USSC and ACG.

   On 12/14/17, Plaintiff filed a request for dismissal of her entire complaint with prejudice.

   Plaintiff appealed the summary judgment ruling in favor of USSC and AGC. On 1/31/20, the court of appeals issued a Remittitur. The court of appeals affirmed as to AGC, but reversed as to USSC.

2. Motion for Leave to File a Cross-Complaint

   At this time, USSC moves to file a cross-complaint against Patrick Blas and Joey Cerrule for indemnification and related claims. USSC contends Blas and Cerrule share responsibility for Plaintiff’s injuries, as Blas (Plaintiff’s father) enrolled his daughter in the USSC camp without using the formal enrollment procedure. Cerrule, the camp director, is alleged to have permitted Blas to do so. Notably, USSC previously had a cross-complaint against Blas on file, but dismissed the cross-complaint when the court granted its summary judgment motion.

   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.) Any other cross-complaint may be filed at any time before the court has set a trial date. (CCP §428.50(b).) If a party fails to file a cross-complaint within the time limits described above, he or she must obtain permission from the court to file the cross-complaint. (CCP §§ 426.50, 428.50(c).) Permission to file a permissive cross-complaint may be granted in the interest of justice at any time during the course of the action. (CCP § 428.50(c).)

   The motion is denied for two reasons. First, it does not appear there is any action pending between any parties at this time. Plaintiff filed a request for dismissal of the entire action, with prejudice, on 12/14/17. Moving Defendants also indicate they dismissed their cross-complaint upon the granting of the summary judgment motion (the Court cannot locate this dismissal, but the case is sufficiently old that many documents do not appear to be accessible online). There does not appear to be any pending action between the parties in which Defendants can move for relief. The parties need to stipulate to vacate the 12/14/17 dismissal of the entire action, with prejudice, if they wish to proceed in connection with the action.

   Second, if the dismissal is vacated, then all of the parties to the action (except AGC, whose summary judgment was affirmed) will be revived. Moving Defendants only filed proof of service of the moving papers on Plaintiff. Cerulle, however, was a defendant to the original action. If the parties revive the action by vacating the 12/14/17 request for dismissal, then Moving Defendants will need to serve Cerulle, as well as all other parties to the action, with the moving papers.

   Moving Defendants are ordered to give notice.

   Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.