LILY THORNDIKE, ET AL. VS NBCUNIVERSAL MEDIA, LLC, ET AL.

Motion for Leave to File Cross-Complaint

Having considered the moving papers, the Court rules as follows. has been filed.

BACKGROUND

On July 16, 2019, Plaintiffs Lily Thorndike, a minor by and through her Guardian ad Litem, Jayelle Thorndike and Jayelle Thorndike (“Plaintiffs”) filed a complaint against Defendants NBCUniversal Media, LLC; Universal City Studios LLC dba Universal Studios Hollywood; Universal Studios LLC dba Univeral Citywalk Hollywood; Universal Parks & Resorts Management Services LLC; and Does 1 through 50 for (1) negligence, (20 premises liability, and (3) negligent infliction of emotional distress.  The complaint alleges Plaintiff Lily was injured using the escalators going from the Lower Lot of the Universal Studios Hollywood Park to the Upper Lot when her gloved right hand caught between the raised circle on the stationary rail and the moving escalator railing.

On December 26, 2019, dismissal was entered as to Defendants NBCUniversal Media, LLC; Universal City Studios LLC; Universal Studios LLC; and Universal Parks & resorts Management Services LLC.

On December 30, 2019, Plaintiffs filed an amendment to complaint, substituting in Universal City Studios, LLC for Doe 1.

On May 1, 2020, Defendant Universal City Studios LLC (“Defendant”) filed the motion for leave to file a cross-complaint.

Trial is set for January 12, 2021.

PARTY’S REQUEST

Defendant Universal City Studios LLC seeks leave to file a cross-complaint against Otis Elevator Company and Roes 1 to 50 for breach of contract, express indemnity, equitable indemnity, contribution, and declaratory relief.

LEGAL STANDARD

CCP section 428.10 provides the following:

A party against whom a cause of action has been asserted in a complaint or cross-complaint may file a cross-complaint setting forth either or both of the following:

(a) Any cause of action he has against any of the parties who filed the complaint or cross-complaint against him. Nothing in this subdivision authorizes the filing of a cross-complaint against the plaintiff in an action commenced under Title 7 (commencing with Section 1230.010) of Part 3.

(b) Any 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.

(Code Civ. Proc., ; 428.10.)

After the trial date has been set, a party seeking to file a cross-complaint must obtain leave of court.  (Code Civ. Proc., ; 428.50(b).)  Leave may be granted in the interest of justice at any time during the course of the action.  (Id., ; 428.50(c).)  Indeed, where a cause of action would otherwise be lost, leave to amend is appropriate even if the party was negligent in not moving for leave to amend earlier.  “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.”  (Silver Organizations, Ltd. v. Frank (1990) 217 Cal.App.3d 94, 98-99.)

“Cross-complaints for comparative equitable indemnity would appear virtually always ;transactionally ;related to the main action.” ; ;(Time for Living, Inc. v. Guy Hatfield Homes ;(1991) 230 Cal.App.3d 30, 38.) ;

DISCUSSION

Defendant argues the proposed cross-complaint arise out of the same transaction, occurrence, or series of transactions or occurrences as the claims brought against Defendant by Plaintiffs as Defendant is seeking defense and indemnification from Otis Elevator Company for the injuries Plaintiff allegedly sustained as a result of Otis’s performance of construction services for Defendant. Defendant argues that Otis is a potential and concurrent tortfeasor under the facts as Otis had control over the area during the time Plaintiff allegedly sustained injuries and Otis’s acts and/or omissions caused and/or contributed to Plaintiff’s alleged injuries.  Defendant asserts that allowing it to litigate its claims against Otis in the same action as Plaintiff’s complaint will preserve judicial resources, reduce litigation expenses, and promote global resolution of the entire matter.

The Court finds the proposed cross-complaint arises out of the same transaction and occurrence as the claims asserted against Defendant.  The Court will thus permit Defendant to file the cross-complaint in the interest of justice.

No opposition has been filed.

CONCLUSION

Based on the foregoing, the motion is GRANTED.

Defendant is ordered to file and serve the proposed cross-complaint within 10 days of this ruling.

Defendant is ordered to give notice of this ruling.

The parties are directed to the header of this tentative ruling for further instructions. ;