Case Number:?BC651784 Hearing Date:?July 25, 2017 Dept:34
SUBJECT: Motion for leave to file a cross-complaint
Moving Party: Defendant Doris J. Tillman
Resp. Party: None
Defendant?s motion is GRANTED.
BACKGROUND:
Plaintiff commenced this action on 2/24/17 against defendants for: (1) breach of contract; (2) indebitatus assumpsit; (3) account stated; (4) open book account; (5) quantum meruit; and (6) foreclosure of mechanic?s lien. Plaintiff alleges that it entered into a written agreement with defendant for improvement and/or construction at the subject property. (Compl., ¶ 6, Exh. A.) Plaintiff alleges that it performed under the agreement, but defendant breached the agreement by causing delays and failing to pay all sums due. (Id., ¶¶ 7-9.)
ANALYSIS:
Defendant seeks leave to file a cross-complaint against plaintiff.
A cross-complaint may be filed as a matter of right prior to or at the same time as an answer. (Code Civ. Proc., § 428.50(b).) Defendant filed an answer on 5/15/17.
Under Code of Civil Procedure section 426.50,
“[a] party who fails to plead a cause of action subject to the requirements of this article, whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave to amend his pleading, or to file a cross-complaint, to assert such cause at any time during the course of the action. The court, after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to amend the pleading, or to file the cross-complaint, to assert such cause of the party who failed to plead the cause acted in good faith. This subdivision shall be liberally construed to avoid forfeiture of causes of action.”
Further, “[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.” (Code Civ. Proc., § 428.50(c).) A cross-complaint may be brought against any person, regardless of whether the person is a party to the initial action, if the cross-complaint “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(b)(2).)
A cross-complaint may be permissive or compulsory. 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, 1313-1314.) 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.) In reviewing a denial of leave to file a compulsory cross-complaint, appellate courts review the entire record for any substantial evidence of bad faith, defined as, ?dishonest purpose, moral obliquity, sinister motive, furtive design or ill will.? (Silver Organizations Ltd. v. Frank (1990) 217 Cal.App.3d 94, 100.)
Judges have discretion to deny leave to file permissive cross-complaints, including based upon a finding of unexplained delay, depending upon the interests of justice. (Crocker Nat. Bank v. Emerald (1990) 221 Cal.App.3d 852, 864; Code Civ. Proc., § 428.50(c).)
It appears that the claims in the proposed cross-complaint arise from the same series of transactions between the parties, and thus the Court should grant the motion unless it finds that defendant has acted with bad faith. (See Compl., ¶¶ 6-11, Exh. A; Proposed XC, ¶¶ 6-33, Exhs. A, B.) There is no showing that defendant has acted in bad faith in seeking leave to assert a cross-complaint. The motion is unopposed.
The motion to file a cross-complaint is GRANTED.