JAVIER LOPEZ ET AL VS WEST COAST PUBLIC WORKS

Tentative Rulings

Case Number: ****6326 Hearing Date: July 9, 2021 Dept: 29

TENTATIVE

After considering the evidence and moving papers, the Court GRANTS the Defendants’ Motion for Leave to Amend Cross-Complaint. (Code Civ. Proc., ; 428.50(b).)

Legal Standard

Code Civ. Proc., section 428.50, provides that:

(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.^[1]

Permission to file a permissive cross-complaint is solely within the trial court’s discretion.” (Crocker Nat. Bank v. Emerald (1990) 221 Cal.App.3d 852, 864.) Cross-claims against complainants arising from the same transaction or series thereof, existing at the time of filing an answer, are compulsory. (See, e.g., Code Civ. Proc., ; 426.30(a); Al Holding Co. v. O’Brien & Hicks, Inc. (1999) 75 Cal.App.4th 1310, 1313-14.) Leave to file compulsory cross-complaints must be granted where moving parties acted in good faith. (Code Civ. Proc., ; 426.50; Silver Organizations, Ltd. v. Frank (1990) 217 Cal.App.3d 94, 98-99.)

Under California Rules of Court Rule, rule 3.1324, subdivision (a), a motion to amend a pleading shall:

(1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments;

(2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and

(3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.

Under California Rule of Court, rule 3.1324, subdivision (b), a separate declaration must accompany the motion and must specify:

(1) the effect of the amendment;

(2) why the amendment is necessary and proper;

(3) when the facts giving rise to the amended allegations were discovered; and

(4) the reasons why the request for amendment was not made earlier.

Discussion

Here, the Defendants seek leave to amend their Cross-Complaint to add Javier Lopez as a cross-defendant under Code Civ. Proc., section 426.50(b), because prior counsel, whether through oversight, inadvertence, mistake, neglect, or otherwise, did not name Plaintiff driver, Javier Lopez, in the Cross-Complaint. (Code Civ. Proc., ; 428.50(b).)

A copy of the proposed First Amended Cross-Complaint (“FACC”) is attached as Exhibit A to the Raya Decl. Under the FAC, Plaintiff seeks to add Plaintiff Javier Lopez as a cross-defendant in order to permit the finder of fact to apportion damages between all joint tortfeasors by pleading causes of action for indemnity and apportionment of fault arising from the same actions from which Plaintiffs seek to recover damages in their Complaint. (Raya Dec ¶ 6). Moving Defendants are informed and believe that Plaintiff JAVIER LOPEZ was negligent in his operation of his vehicle, caused the accident and therefore caused his own injuries and the injuries of the passengers in his vehicle. (Id.) As such, the Defendants represent that Plaintiff Javier Lopez is a necessary party in the Cross-Complaint. (Id.)

Next, Defendants’ counsel represents that it is unclear why prior counsel failed to include Plaintiff Javier Lopez in the original Cross-Complaint. (Raya Dec ¶ 7.) However, the Defendants are now seeking to file the proposed Cross-Complaint in good faith after discovering prior counsel’s error. (Id.) The Defendants argue that contrary to the Plaintiffs’ arguments, there can be no claimed surprise to Plaintiff Javier Lopez in respect to these issues as they have already been raised simply by Plaintiffs’ filing of this action. (Id.) To that end, the Complaint supports the Defendants contention. (See generally Complaint, ¶¶ 14–18.) Also, Defendants argue that issues going to Plaintiff Javier Lopez’s contributory negligence were raised he affirmative defenses pled by Defendants in their Answers to Plaintiffs’ Complaint. (Id.)

Last, the Defendants argue that permitting leave to file the cross-complaint against Plaintiff Javier Lopez is in the interest of justice. “[T]he equitable indemnity doctrine originated in the common sense proposition that when two individuals are responsible for a loss, but one of the two is more culpable than the other, it is only fair that the more culpable party should bear a greater share of the loss. A right of equitable indemnity can arise only if the prospective indemnitor and indemnitee are mutually liable to another person for the same injury.” (Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1176–1177; accord, BFGC Architects Planners, Inc. v. Forcum/Mackey Construction, Inc. (2004) 119 Cal.App.4th 848, 852 [the doctrine of equitable indemnity “applies only among defendants who are jointly and severally liable to the plaintiff”]; Children’s Hospital v. Sedgwick (1996) 45 Cal.App.4th 1780, 1786 [“California common law recognizes a right of partial indemnity under which liability among multiple tortfeasors may be apportioned according to the comparative negligence of each”].) Hence, the Defendant argue that indemnity against Plaintiff Javier Lopez for Plaintiffs Carlos Lopez and Yesenia Romero’s injuries/damages will only be available if they are “joint tortfeasors.” To ensure his status as a “joint tortfeasor,” the Defendants must affirmatively name Plaintiff Javier Lopez in their Cross-Complaint.

In opposition, the Plaintiffs argue that Javier Lopez is an unnecessary party as a cross-defendant since he has already been named in Defendants’ answer. By the same logic, though, it would not prejudice the Plaintiffs to have Javier Lopez named as a cross-defendant on the Cross-Complaint. With respect to the timing of this proposed allegation, the Defendants’ current counsel substituted into this case in May 2021 and filed the pending motion in May 2021. Thus, while Defendants’ prior counsel did not name Javier Lopez as a cross-defendant due to some inadvertence, etc., it is apparent to this Court that the Defendants’ current counsel acted diligently.

Accordingly, the Court grants the Defendants’ Motion for Leave to Amend the Cross-Complaint. (Code Civ. Proc., ; 428.50(b).)

Conclusion

Therefore, the Court GRANTS the Defendants’ Motion for Leave to Amend Cross-Complaint. (Code Civ. Proc., ; 428.50(b).) Defendant is granted leave to separately file cross complaint, included as Exhibit A of their motion, within 20 days of this order.

Moving party is ordered to give notice.

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Case Number: ****6326 Hearing Date: July 8, 2021 Dept: 29

TENTATIVE

After considering the evidence and moving papers, the Court GRANTS the Defendants’ Motion for Leave to Amend Cross-Complaint. (Code Civ. Proc., ; 428.50(b).)

Legal Standard

Code Civ. Proc., section 428.50, provides that:

(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.^[1]

Permission to file a permissive cross-complaint is solely within the trial court’s discretion.” (Crocker Nat. Bank v. Emerald (1990) 221 Cal.App.3d 852, 864.) Cross-claims against complainants arising from the same transaction or series thereof, existing at the time of filing an answer, are compulsory. (See, e.g., Code Civ. Proc., ; 426.30(a); Al Holding Co. v. O’Brien & Hicks, Inc. (1999) 75 Cal.App.4th 1310, 1313-14.) Leave to file compulsory cross-complaints must be granted where moving parties acted in good faith. (Code Civ. Proc., ; 426.50; Silver Organizations, Ltd. v. Frank (1990) 217 Cal.App.3d 94, 98-99.)

Under California Rules of Court Rule, rule 3.1324, subdivision (a), a motion to amend a pleading shall:

(1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments;

(2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and

(3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.

Under California Rule of Court, rule 3.1324, subdivision (b), a separate declaration must accompany the motion and must specify:

(1) the effect of the amendment;

(2) why the amendment is necessary and proper;

(3) when the facts giving rise to the amended allegations were discovered; and

(4) the reasons why the request for amendment was not made earlier.

Discussion

Here, the Defendants seek leave to amend their Cross-Complaint to add Javier Lopez as a cross-defendant under Code Civ. Proc., section 426.50(b), because prior counsel, whether through oversight, inadvertence, mistake, neglect, or otherwise, did not name Plaintiff driver, Javier Lopez, in the Cross-Complaint. (Code Civ. Proc., ; 428.50(b).)

A copy of the proposed First Amended Cross-Complaint (“FACC”) is attached as Exhibit A to the Raya Decl. Under the FAC, Plaintiff seeks to add Plaintiff Javier Lopez as a cross-defendant in order to permit the finder of fact to apportion damages between all joint tortfeasors by pleading causes of action for indemnity and apportionment of fault arising from the same actions from which Plaintiffs seek to recover damages in their Complaint. (Raya Dec ¶ 6). Moving Defendants are informed and believe that Plaintiff JAVIER LOPEZ was negligent in his operation of his vehicle, caused the accident and therefore caused his own injuries and the injuries of the passengers in his vehicle. (Id.) As such, the Defendants represent that Plaintiff Javier Lopez is a necessary party in the Cross-Complaint. (Id.)

Next, Defendants’ counsel represents that it is unclear why prior counsel failed to include Plaintiff Javier Lopez in the original Cross-Complaint. (Raya Dec ¶ 7.) However, the Defendants are now seeking to file the proposed Cross-Complaint in good faith after discovering prior counsel’s error. (Id.) The Defendants argue that contrary to the Plaintiffs’ arguments, there can be no claimed surprise to Plaintiff Javier Lopez in respect to these issues as they have already been raised simply by Plaintiffs’ filing of this action. (Id.) To that end, the Complaint supports the Defendants contention. (See generally Complaint, ¶¶ 14–18.) Also, Defendants argue that issues going to Plaintiff Javier Lopez’s contributory negligence were raised he affirmative defenses pled by Defendants in their Answers to Plaintiffs’ Complaint. (Id.)

Last, the Defendants argue that permitting leave to file the cross-complaint against Plaintiff Javier Lopez is in the interest of justice. “[T]he equitable indemnity doctrine originated in the common sense proposition that when two individuals are responsible for a loss, but one of the two is more culpable than the other, it is only fair that the more culpable party should bear a greater share of the loss. A right of equitable indemnity can arise only if the prospective indemnitor and indemnitee are mutually liable to another person for the same injury.” (Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1176–1177; accord, BFGC Architects Planners, Inc. v. Forcum/Mackey Construction, Inc. (2004) 119 Cal.App.4th 848, 852 [the doctrine of equitable indemnity “applies only among defendants who are jointly and severally liable to the plaintiff”]; Children’s Hospital v. Sedgwick (1996) 45 Cal.App.4th 1780, 1786 [“California common law recognizes a right of partial indemnity under which liability among multiple tortfeasors may be apportioned according to the comparative negligence of each”].) Hence, the Defendant argue that indemnity against Plaintiff Javier Lopez for Plaintiffs Carlos Lopez and Yesenia Romero’s injuries/damages will only be available if they are “joint tortfeasors.” To ensure his status as a “joint tortfeasor,” the Defendants must affirmatively name Plaintiff Javier Lopez in their Cross-Complaint.

In opposition, the Plaintiffs argue that Javier Lopez is an unnecessary party as a cross-defendant since he has already been named in Defendants’ answer. By the same logic, though, it would not prejudice the Plaintiffs to have Javier Lopez named as a cross-defendant on the Cross-Complaint. With respect to the timing of this proposed allegation, the Defendants’ current counsel substituted into this case in May 2021 and filed the pending motion in May 2021. Thus, while Defendants’ prior counsel did not name Javier Lopez as a cross-defendant due to some inadvertence, etc., it is apparent to this Court that the Defendants’ current counsel acted diligently.

Accordingly, the Court grants the Defendants’ Motion for Leave to Amend the Cross-Complaint. (Code Civ. Proc., ; 428.50(b).)

Conclusion

Therefore, the Court GRANTS the Defendants’ Motion for Leave to Amend Cross-Complaint. (Code Civ. Proc., ; 428.50(b).) Defendant is granted leave to separately file cross complaint, included as Exhibit A of their motion, within 20 days of this order.

Moving party is ordered to give notice.

Case Number: ****6326    Hearing Date: September 14, 2020    Dept: 29

Lopez  vs.  West Coast Public Works

Motion for Leave to File Cross-Complaint by Defendants, West Coast Public Works and Agapito Ayala, is GRANTED.  (Code Civil Procedure 428.50).  Defendants are ordered to file their cross-complaint against Damaris Abigail Lopez within 10 days of the date of this order and to serve the summons and cross-complaint forthwith.  Because the cross-complaint arises out of the same accident as this action, the Court finds that it is in the interests of justice to grant this motion.

Moving party is ordered to give notice.  

NOTE:  PARTIES MUST APPEAR THIS DATE AS A TRIAL SETTING CONFERENCE IS ALSO SET ON CALENDAR FOR THIS DATE. 

In order to comply with social distancing regulations, all parties are strongly encouraged to appear via video or telephonic services offered by the Court, through LACourtConnect.

Case Number: ****6326    Hearing Date: March 16, 2020    Dept: 29

Lopez et al v. West Coast Public Works et al.

Motion for Leave to File a Cross-Complaint by Defendants West Coast Public Works and Agapito Ayala is TAKEN OFF CALENDAR. Defendants may refile their motion after correcting the issues identified below.

It is not clear from the moving papers who the proposed cross-defendants are. The notice of motion states that Defendants seek leave to file a cross-complaint against non-party Damaris Abigail Lopez, who is the insured on the vehicle in question. Consistent with that statement, the caption on the proposed cross-complaint states that the proposed cross-defendant is “Damaris Abiggal (sic) Lopez and Roes 1-50.”

But the first sentence of the proposed cross-complaint states that Defendants bring the cross-complaint against Javier Lopez in addition to Damaris Lopez and Roes 1-50. In opposing the motion, Plaintiffs state that Plaintiff Javier Lopez is one of the proposed cross-defendants and Defendants do not correct that statement in the reply brief.

Different standards apply to compulsory cross-complaints by defendants against a plaintiff in the action and permissive cross-complaints against third parties. It is not clear to the Court whether Defendants seek to file a cross-complaint against Javier Lopez in addition to Damaris Lopez. The Court takes this motion off calendar so that Defendants refile after either (1) correcting the proposed cross-complaint to remove the reference to cross-defendant Javier Lopez in the first sentence; or (2) correcting the notice of motion, memorandum of points and authorities and caption of the proposed cross-complaint to make clear that Javier Lopez is one of the proposed cross-defendants.

Moving party is ordered to give notice.