CONSTRUCTURE INC VS FASSBERG CONTRACTING CORP

Tentative Rulings

Case Number: ****6346 Hearing Date: July 9, 2021 Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Cross-Defendant S&S Management Services LLC’s motion for leave to file a cross-complaint granted.

Cross-Defendant S&S Management Services LLC (“S&S”) moves for leave to file a cross-complaint as to Plaintiff/Cross-Defendant Constructure, Inc. (“Constructure”) in this action. (C.C.P. ;;428.10(b), 428.50(c).) S&S moves to file this permissive cross-complaint against Constructure on the grounds that the causes of action asserted therein arise out of the same transaction and occurrence and that the interests of justice will be served by allowing its filing. (Notice of Motion, pgs. 1-2.)

Constructure filed the instant action against Defendant Fassberg Contracting Corp. (“Fassberg”) for compensation arising from work Constructure performed during construction of an apartment building at 2525 Wilshire Boulevard, Los Angeles (“the Project”), for which Fassberg was hired as a General Contractor and subcontracted concrete and rebar work to Constructure. In its cross-complaint, Fassberg alleged Constructure delayed the Project, failed to meet deadlines, and ultimately abandoned the Project forcing Fassberg to replace Constructure. While S&S was not named in the Constructure’s complaint, first amended complaint (“FAC”), or operative second amended complaint (“SAC”), on March 29, 2018, Fassberg filed its operative first amended cross-complaint (“FAXC”) against Constructure, S&S (for the first time), and others for breach of contract, recovery under license bond, and breach of contract based on allegations that S&S was acting in joint-venture with Constructure and/or was Constructure’s alter ego with respect to the Project. S&S answered Fassberg’s FAXC on June 26, 2019. On June 11, 2021, S&S filed the instant motion for leave to pursue crossclaims for indemnity and breach of contract against Constructure on the grounds that any liability on the part of S&S is due to the acts or omissions of Constructure.

C.C.P. ;428.10(b) provides, in pertinent part, as follows: “A party against whom a cause of action has been asserted in a… cross-complaint may file a cross-complaint setting forth… [a]ny cause of action he has against a person alleged to be liable thereon, whether or not such person is already a party to the action, if the cause of action asserted in his cross-complaint (1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause brought against him.”

C.C.P. ;428.50 provides, as follows:

(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.

S&S’s proposed cross-complaint asserts causes of action for (1) comparative indemnity and apportionment of fault; (2) total equitable indemnity; (3) contribution; (4) declaratory relief – duty to defend; (5) declaratory relief – duty to indemnify; (6) contractual indemnity; (7) breach of contract; and (8) implied contractual indemnity. (Motion, pgs. 3-4, Exh. A.) The proposed cross-complaint arises out of the same “transaction, occurrence, or series of transactions or occurrences” as the causes of action asserted against S&S in Fassberg’s FAXC, specifically Constructure’s work on the Project. (C.C.P. ;428.10(b)(1).) In addition, S&S’s cause of action for equitable indemnity against Constructure are transactionally related to the allegations in the Fassberg’s FACC. (See Time for Living, Inc. v. Guy Hatfield Homes/All American Development Co. (1991) 230 Cal.App.3d 30, 38 (“Cross-complaints for comparative equitable indemnity would appear virtually always transactionally related to the main action”).)

S&S is entitled to an order granting leave to file its cross-complaint. In opposition, Constructure argues the motion improperly seeks leave to file a permissive cross-complaint where S&S’s cross-complaint is a compulsory cross-complaint. (Opposition, pg. 3.) However, this argument is without merit, while Constructure is the plaintiff in the instant action, it has not asserted any claims against S&S, rather, S&S’s claims are filed with respect to the FAXC filed by Fassberg. Here, Constructure has asserted no claims against S&S, and as such, the proposed cross-complaint is permissive and not compulsory, and not subject to the time constraints argued by Constructure. (Reply, pgs. 1-3; C.C.P. ;;428.50(a), 428.50(b) [“[a]ny other cross-complaint may be filed at any time before the court has set a trial date.”].) Thus Heshejin v. Rostami (2020) 54 Cal.App.5^th 984, 994-95, cited in opposition is inapposite. (Id., [holding ; 426.30 applies to shareholders in derivative shareholder action where corporation was party to the prior action, and the proposed claims should have been asserted in the prior action].) In addition, while a trial date of November 29, 2021 has been set in this action, C.C.P. ;428.50(c) provides that the Court may provide leave in the interest of justice at any time during the course of litigation. Finally, S&S need not make a showing of oversight, inadvertence, mistake or neglect pursuant to C.C.P. ;426.50 which only applies to compulsory cross-complaints and not permissive cross-complaints.

Based on the foregoing, S&S’s motion for leave to file a cross-complaint is granted.

Dated: July _____, 2021

Hon. Monica Bachner

Judge of the Superior Court