This is a personal injury action, arising out of an automobile accident at an intersection. Plaintiffs Melanie and Heather Schifano have filed suit, though it is not clear what role Heather played in the incident. Before the Court this day is a motion by defendant for leave to file a cross-complaint against Heather, whose role is – once again – unclear.
On 07/18/19, defendant filed an answer to the Complaint. She did not file a cross-complaint at the time, explaining that there were no facts available at the time to suspect grounds for a cross-complaint back against co-plaintiff. Since this Court has not been provided any information as to Heather’s role in the incident, it is difficult for this Court to assess whether that ignorance was genuine. Nevertheless, leave is presumptively proper.
Pursuant to CCP §428.10, a party against whom a cause of action has been asserted may file a cross-complaint to include any cause of action he has against a person alleged to be liable thereon, if the cross-claim (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. Defendant’s proposed cross-claims are related to the subject matter of the complaint because they arise out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action in the complaint. CCP § 426.10(c). Based on the logical relationship test, the proposed cross-claims are quite clearly “compulsory” cross-claims. Align Tech., Inc. v. Tran (2009) 179 Cal.App.4th 949, 962; K.R.L. Partnership v. Superior Court (2004) 120 Cal.App.4th 490, 498, in accord, Cheiker v. Prudential Ins. Co. of America, 820 F2d 334, 337 (9th Cir. 1987). A compulsory cross-claim must be asserted in the primary action or forfeited. CCP § 426.30; see AL Holding Co. v. O’Brien & Hicks, Inc. (1999) 75 Cal.App.4th 1310, 1313–1314. Forfeiture, of course, is to be avoided if at all possible. CCP §426.50.
Pursuant to CCP §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 if the party who failed to plead the cause acted in good faith.” (Emphasis added.) So long as the moving party has acted in good faith, leave is presumed proper. Silver Organizations Ltd. v. Frank (1990) 217 Cal.App.3d 94, 98; Sidney v. Superior Court (1988) 198 Cal.App.3d 710, 718.
Given that no opposition was filed, and in light of the relatively innocuous claims asserted in the cross-complaint, this Court will err on the side of caution, conclude there was excusable neglect for not filing the cross-complaint earlier, and avoid forfeiture by granting leave to amend.
Motion Granted. Defendant to file and serve cross-complaint within 5 days.