On 03/14/2018 a Personal Injury - Motor Vehicle case was filed by TONYA TWITCHELL against LORENA MARTINEZ in the jurisdiction of Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California.
****8031
03/14/2018
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
TWITCHELL TONYA
SHY BARRY
DOES 1 TO 100
MARTINEZ LORENA
4/16/2018: AFFIDAVIT OF DUE DILIGENCE
4/16/2018: PROOF OF SERVICE SUMMONS
4/16/2018: PROOF OF SERVICE SUMMONS
4/24/2018: DEMAND FOR JURY TRIAL
4/24/2018: ANSWER TO COMPLAINT
4/24/2018: COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)
4/24/2018: CIVIL DEPOSIT
4/24/2018: Summons on Cross Complaint
5/9/2018: CROSS-COMPLAINT OF DEFENDANT BARRY SHY FOR: 1. EQUITABLE INDEMNITY; 2. CONTRIBUTION; 3. DECLARATORY RELIEF
5/9/2018: ANSWER-PERSONAL INJURY PROPERTY DAMAGE, WRONGFUL DEATH
5/29/2018: ORDER GRANTING APPLICATION TO EXTEND TIME TO SERVE SUMMONS AND COMPLAINT PURSUANT TO CALIFORNIA RULE OF COURT 3.110(E)
5/29/2018: APPLICATION FOR EXTENSION OF TIME TO SERVE SUMMONS PURSUANT TO CALIFORNIA RULE OF COURT 3.110(E); DECLARATION OF KEILAH BETTS;
7/9/2018: CIVIL DEPOSIT
8/8/2018: ANSWER TO CROSS COMPLAINT OF BARRY SHY
8/23/2018: ANSWER TO CROSS-COMPLAINT
12/28/2018: Stipulation and Order
3/14/2018: SUMMONS
3/14/2018: COMPLAINT FOR DAMAGES SOUNDING IN WRONGFUL DEATH I. GENERAL NEGLIGENCE ;ETC
Stipulation and Order (Dismissing Request For Compensatory Damages In Cross-Compliant of Barry Shy); Filed by Barry Shy (Defendant)
ANSWER TO CROSS-COMPLAINT
ANSWER TO CROSS COMPLAINT OF BARRY SHY
Answer to Cross-Complaint; Filed by Lorena Martinez (Defendant)
CIVIL DEPOSIT
Receipt; Filed by Tonya Twitchell (Plaintiff)
APPLICATION FOR EXTENSION OF TIME TO SERVE SUMMONS PURSUANT TO CALIFORNIA RULE OF COURT 3.110(E); DECLARATION OF KEILAH BETTS;
ORDER GRANTING APPLICATION TO EXTEND TIME TO SERVE SUMMONS AND COMPLAINT PURSUANT TO CALIFORNIA RULE OF COURT 3.110(E)
Order; Filed by Tonya Twitchell (Plaintiff)
Application for Extension of Time; Filed by Tonya Twitchell (Plaintiff)
Answer; Filed by Lorena Martinez (Defendant)
AFFIDAVIT OF DUE DILIGENCE
PROOF OF SERVICE SUMMONS
Proof-Service/Summons; Filed by Tonya Twitchell (Plaintiff)
Proof-Service/Summons; Filed by Tonya Twitchell (Plaintiff)
Declaration re: Due Diligence; Filed by Tonya Twitchell (Plaintiff)
PROOF OF SERVICE SUMMONS
Complaint; Filed by Tonya Twitchell (Plaintiff)
SUMMONS
COMPLAINT FOR DAMAGES SOUNDING IN WRONGFUL DEATH I. GENERAL NEGLIGENCE ;ETC
Case Number: BC698031 Hearing Date: October 24, 2019 Dept: 3
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
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TONYA TWITCHELL, Plaintiff(s), vs. LORENA MARTINEZ, ET AL., Defendant(s). |
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Case No.: BC698031 [TENTATIVE] ORDER DENYING MOTION FOR LEAVE TO AMEND CROSS-COMPLAINT Dept. 3 1:30 p.m. October 24, 2019 |
Plaintiff, Tonya Twitchell filed this action against Defendants, Lorena Martinez and Barry Shy for damages arising out of an automobile accident. Plaintiff alleges she was injured when Martinez negligently drove a car owned by Shy in a manner that caused an accident.
Plaintiff filed her complaint on 3/14/18. On 4/24/18, Martinez answered and cross-complained against Shy. On 5/09/18, Shy answered and cross-complained against Martinez. The case is set for trial on 11/20/19.
At this time, Shy moves for leave to file an amended cross-complaint against various Toyota entities, contending he recently discovered the cause of the accident was a problem with the tire’s installation on the vehicle. Shy contends he must be permitted to amend his cross-complaint because, if he does not, he could be required to pay 100% of Plaintiff’s economic damages even if he is found to be minimally at fault for the accident.
Shy misunderstands the law in this regard. Plaintiff has only sued Shy and Martinez. If either of them is found to be responsible for any percentage of the accident, s/he will be required to pay 100% of economic damages. This is true, however, regardless of what cross-complaints are filed in the action. Cross-complaints govern the defendants’ abilities to recover damages apportioned to them in the main action by way of a judgment against the cross-defendant(s). Of note, Shy appears to believe that, if the motion is granted, Plaintiff will add claims against the Toyota defendants to her action as well. It appears Plaintiff has chosen not to do so, and she cannot be forced to sue entities she does not choose to sue.
A motion for leave to file a cross-complaint (or, by extension, amended cross-complaint) for indemnification can be granted in the court’s discretion and upon a finding that the filing of the cross-complaint is in the interest of justice. CCP §§428.10, 428.50.
As Plaintiff correctly notes in opposition to the motion, the statute of limitations on a complaint for indemnification does not commence running until the defendant settles or suffers a judgment in the main action. A personal injury defendant's action for equitable indemnity against a joint tortfeasor, though subject to the CCP § 335.1 two-year statute of limitations, is separate and distinct from the plaintiff's tort action. Instead of accruing at the time of the plaintiff's injury, it accrues when the defendant pays a judgment or settlement for which indemnity is sought. Preferred Risk Mut. Ins. Co. v. Reiswig (1999) 21 Cal.4th 208, 213, Fireman's Fund Ins. Co. v. Sparks Const., Inc. (2004) 114 Cal.App.4th 1135, 1151.
Plaintiff will be seriously prejudiced if Defendant is permitted, on the eve of trial, to amend the cross-complaint to add four new parties. Defendant, on the other hand, will not be prejudiced at all as a result of the denial of the motion, as Defendant is permitted to file a cross-complaint against the Toyota entities if and when a judgment is entered against him. The motion for leave to amend the cross-complaint is therefore denied.
Moving Defendant is ordered to give notice.
Parties who intend to submit on this tentative must send an email to the court at sscdept3@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.