Cross-complaints fall into two categories: compulsory and permissive.
A "compulsory" cross-claim is a claim that (i) a defendant has against the plaintiff at the time the plaintiff filed his/her complaint against the defendant; and (ii) is "related" to the complaint/cross-complaint in that it "arises out of the same transaction, occurrence, or series of transactions or occurrences" as cause of action in the complaint/cross-complaint. (K.R.L. Partnership v. Sup. Ct. (2004) 120 Cal.App.4th 490, 498; Code Civ. Proc. § 426.30(a)). To avoid piecemeal litigation, courts liberally construe the term “transaction”—it is “ ‘not confined to a single, isolated act or occurrence . . . but may embrace a series of acts or occurrences logically interrelated.’ ” (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 960).
Claims arising after service of the answer are permissive, not compulsory, even if the subject matter is related to the complaint. (Crocker Nat. Bank v. Emerald (1990) 221 Cal.App.3d 852, 864). Leave to file permissive cross-complaint is solely within the trial court's discretion. (Crocker Nat. Bank v. Emerald (1990) 221 Cal.App.3d 852).
Unrelated claims and those claims arising after service of the answer are permissive, not compulsory. (Crocker Nat. Bank v. Emerald (1990) 221 Cal.App.3d 852, 864). Permissive cross-complaints are governed by Code of Civil Procedure § 428.50(c), which provides, “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.” The decision to grant permission to file a permissive cross-complaint rests within the sound discretion of the trial court. (Orient Handel v. United States Fid. & Guar. Co. (1987) 192 Cal.App.3d 684, 701).
A cross-complaint against any of the parties who filed the initial complaint or cross-complaint against the cross-complainant must be filed before or at the same time as the answer to the initial complaint or cross-complaint, which answer must be filed within 30 days of service of the complaint or cross-complaint. (CCP §§ 412.20(a)(3), 428.50(a), 432.10). Any other cross-complaint may be filed at any time before the court has set a trial date. (CCP §428.50(b)).
If a party fails to file a cross-complaint within the time limits described above, he or she must obtain permission from the court to file the cross-complaint. (CCP §§ 426.50, 428.50(c)). Parties seeking to file untimely compulsory cross-complaints may file with the Court for leave to do so, even though the failure to timely file resulted from oversight, inadvertence, mistake, neglect, or other cause. (Code Civ. Proc. § 426.50). Leave to file a mandatory cross-complaint must be granted absent bad faith. (Silver Organizations, Ltd. v. Frank (1990) 217 Cal.App.3d 94, 99). In such a case, after notice to the adverse party, the Court generally must grant leave to file the cross-complaint if the party acted in good faith. Permission to file a permissive cross-complaint may be granted in the interest of justice at any time during the course of the action. (CCP § 428.50(c)).
The California Supreme Court recognized over 20 years ago that “a defendant is generally authorized to file a cross-complaint against a concurrent tortfeasor for partial indemnity ... even when such concurrent tortfeasor has not been named a defendant in the original complaint.” (American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 607). Together, sections 428.10 and 428.20 of the Code of Civil Procedure authorize the joinder of additional parties through a permissive cross-complaint.
If the cross-complaint adds new parties, the cross-complaint must be served on all parties and proofs of service on the new parties must be filed within 30 days of the filing of the cross-complaint. (Cal. Rules of Court, rule 3.110(c)).
Neither Code of Civil Procedure section 428.60 nor California Rules of Court, rule 3.110(c) provide a basis for a motion to quash resulting from a delay in serving the cross-complaint. (See Cal. Rules of Court, rule 3.110(f)).
“Once judgment is entered, the party cannot assert his or her unpleaded claim in a separate lawsuit.” (City of Hanford v. Superior Court (1989) 208 Cal.App.3d 580, 586–587 (internal citation omitted)). “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. This subdivision shall be liberally construed to avoid forfeiture of causes of action.” (CCP § 426.50).
“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. Factors such as oversight, inadvertence, neglect, mistake or other cause, are insufficient grounds to deny the motion unless accompanied by bad faith.” (Silver Organizations Ltd. v. Frank (1990) 217 Cal.App.3d 94, 98–99). “While it may be argued that [defendant], acting as their own counsel, may have been guilty of neglect, inadvertence or oversight, thereby causing delay, section 426.50 expressly disallows denial of a motion based on these grounds.” (Silver Organizations Ltd. v. Frank (1990) 217 Cal.App.3d 94, 101).
“‘‘Bad faith,’ is defined as ‘[t]he opposite of ‘good faith,’ generally implying or involving actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake . . ., but by some interested or sinister motive[,] . . . not simply bad judgment or negligence, but rather . . . the conscious doing of a wrong because of dishonest purpose or moral obliquity; . . . it contemplates a state of mind affirmatively operating with furtive design or ill will.’’” (Id. at 100 (internal citations omitted)).
The determination that the moving party acted in bad faith must be supported by substantial evidence. (Silver Organizations Ltd. v. Frank (1990) 217 Cal.App.3d 94, 99; Foot’s Transfer & Storage Co. v. Superior Court (1980) 114 Cal.App.3d 897, 902).
The “principle of liberality requires that a strong showing of bad faith be made in order to support a denial of the right to file a cross-complaint under this section.” (Foot’s Transfer & Storage Co. v. Superior Court (1980) 114 Cal.App.3d 897, 902).
“Any person interested under a written instrument …, or under a contract, or who desires a declaration of his or her rights or duties with respect to another, … may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract.” (Code Civ. Proc., § 1060.)
Accordingly, the Amended Cross-Complaint is compulsory. Generally, a party must 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. (Cal. Code Civ Proc § 428.50(a).) After the answer has been filed, the party must obtain leave of court to file any cross-complaint. (Cal. Code Civ Proc § 428.50.) Pursuant to Cal.
Jan 27, 2021
Riverside County, CA
(CCP § 412.20(a)(3).) Defendant states in his affidavit that he discovered the “fraudulent filing” of the proof of service on the court’s website on November 28, 2020. (Adler Affidavit, ¶ 2.) Yet he offers no explanation why he waited until December 15, 2020 to serve the motion on Plaintiff, and December 29, 2020 to file the motion with the court. He never filed an ex parte application or other request with the court for leave to file an untimely motion to quash.
Jan 27, 2021
Riverside County, CA
Compulsory Cross-Complaint Defendants argue that this instant action should be dismissed in its entirety because Plaintiff is attempting to re-litigate the issues arising from the same or substantially identical transactions and require re-determination of the same or substantially identical question of law or fact. The Court finds this argument meritorious.
Jan 25, 2021
Personal Injury/ Tort
Fraud
Los Angeles County, CA
A cross-complaint is compulsory when a related cause of action existed at the time of serving the defendant’s answer to the complaint. (Code Civ. Proc. § 426.30(a).) A related cause of action is “. . . a cause of action which arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint.” (Code Civ. Proc. § 426.10, subd. (c).)
Jan 25, 2021
Los Angeles County, CA
., § 432.10 [“A party served with a cross-complaint may within 30 days after service move, demur, or otherwise plead to the cross-complaint in the same manner as to an original complaint.”]; California Rules of Court, rule 3.110(d) [referring to the 30-day time period prescribed for the response after service of the initial complaint].) On March 23, 2020, Defendants’ counsel, Justin Eiser, filed and served his Declaration re: Inability to Meet and Confer.
Jan 25, 2021
Los Angeles County, CA
Code § 428.50 (a).) Any other cross-complaint may be filed at any time before the court has set a date for trial. (Cal. Civ. Proc. Code § 428.50 (b).) 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. (Cal. Civ. Proc. Code § 428.50 (c).)
Jan 22, 2021
Los Angeles County, CA
The allowance of a supplemental complaint is permissive. Defendant does not oppose this motion. Since the facts alleged relate to the original cause of action, the Court exercises its discretion and GRANTS the motion for leave to file a supplemental complaint. Plaintiff is to serve the supplemental complaint.
Jan 22, 2021
Los Angeles County, CA
Defendants’ proposed claims are compulsory because they arise from the same occurrence or series of occurrences in the Complaint, specifically the operation of the restaurant and bar known as Choza 96 pursuant to written Business Partnership Agreements.
Jan 22, 2021
Los Angeles County, CA
Plaintiff finally argues that it will be severely prejudiced if leave to amend is not granted because Plaintiff would risk forfeiture of compulsory claims. Plaintiff asserts that here, it seeks, in good faith, to amend its original complaint to add compulsory claims against Defendants. In opposition, Opposing Defendants argue that Plaintiff should not be granted leave to add allegations against PVE.
Jan 21, 2021
Business
Intellectual Property
Los Angeles County, CA
CCP §§428.10, 428.50. There is no trial date in this case. While the action has been pending for some time, absent prejudice, the Court finds the motion is timely made. Plaintiff also argues the proposed cross-complaint is not ripe because the obligation to indemnify does not arise unless and until there is a judgment in the main action. Defendants may cross-complain against any person from whom they seek equitable indemnity.
Jan 21, 2021
Los Angeles County, CA
The claims asserted in the proposed cross-complaint, which involve the same property and are based upon the same recorded documents as Plaintiff’s complaint, are compulsory. (Silver, supra 217 Cal.App.3d at 101 (“It clearly is [compulsory] since it seeks affirmative claims for relief which evolve from ‘a series of acts or occurrences logically interrelated’ and thus is a related cause of action subject to forfeiture if not pleaded in the instant action as provided in section 426.30.”).)
Jan 21, 2021
Real Property
Quiet Title
Los Angeles County, CA
., § 428.50, subd. (a).) The answer was filed on April 14, 2020. Cross-Complainant did not file the cross-complaint until October 13, 2020. Cross-Complainant needed to obtain leave of court to file a cross-complaint, but failed to do so. (Code Civ. Proc., § 428.50, subd. (c). However, “leave may be granted in the interest of justice at any time during the course of the action.” (Ibid.)]
Jan 21, 2021
Other
Intellectual Property
Los Angeles County, CA
., § 428.50, subd. (a).) The answer was filed on April 14, 2020. Cross-Complainant did not file the cross-complaint until October 13, 2020. Cross-Complainant needed to obtain leave of court to file a cross-complaint, but failed to do so. (Code Civ. Proc., § 428.50, subd. (c). However, “leave may be granted in the interest of justice at any time during the course of the action.” (Ibid.)]
Jan 21, 2021
Other
Intellectual Property
Los Angeles County, CA
The instant cross-complaint is compulsory since it “arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint.” Code Civ. Proc., § 426.10. Pursuant to Code of Civ.
Jan 21, 2021
Personal Injury/ Tort
Fraud
Los Angeles County, CA
CCP §§428.10, 428.50. There is no trial date in this case. While the action has been pending for some time, absent prejudice, the Court finds the motion is timely made. Plaintiff also argues the proposed cross-complaint is not ripe because the obligation to indemnify does not arise unless and until there is a judgment in the main action. Defendants may cross-complain against any person from whom they seek equitable indemnity.
Jan 21, 2021
Personal Injury/ Tort
other
Los Angeles County, CA
With regard to the request for permissive intervention, Plaintiffs further argue that the interests of the litigants outweigh the need for intervention because permitting intervention would cause delay and harm the class members' recovery interest. Defendant also opposes the motion. Proposed Intervenors' request for judicial notice is granted. The request for mandatory intervention under Code of Civ. Proc. § 387(d)(1) is denied.
Jan 20, 2021
Employment
Other Employment
Sacramento County, CA
Permissive Forum Selection Clause “[A] distinction has been drawn between a mandatory and a permissive forum selection clause for purposes of analyzing whether the clause should be enforced. A mandatory clause will ordinarily be given effect without any analysis of convenience; the only question is whether enforcement of the clause would be unreasonable.
Jan 20, 2021
Los Angeles County, CA
BACKGROUND On May 19, 2020, Plaintiff Jesus Herrera (“Plaintiff”) filed a complaint against Defendants Jose Luis Corral (“Corral”) and Maria Elena Lopez (“Lopez”) (collectively, “Defendants”) for negligence and motor vehicle owner liability – permissive use of vehicle. Plaintiff’s causes of action arise out of an automobile accident that occurred on May 28, 2018. On July 13, 2020, Plaintiff filed a notice of related case, identifying Jose Luis Corral v.
Jan 19, 2021
Los Angeles County, CA
However, even in that case, the “compulsory nature of a predispute arbitration agreement does not render the agreement unenforceable on grounds of coercion or for lack of voluntariness.” (Lagatree v. Luce, Forward, Hamilton & Scripps LLP (1999) 74 Cal.App.4th 1105, 1129.) Next, the court does not follow Plaintiff’s arguments made under Nelson v.
Jan 19, 2021
Employment
Wrongful Term
Los Angeles County, CA
(CCP §§ 412.20(a)(3), 428.50(a), 432.10.) Any other cross-complaint may be filed at any time before the court has set a trial date. (CCP §428.50(b).) If a party fails to file a cross-complaint within the time limits described above, he or she must obtain permission from the court to file the cross-complaint. (CCP §§ 426.50, 428.50(c).) Leave to file a mandatory cross-complaint must be granted absent bad faith. Silver Organizations, Ltd. v. Frank (1990) 217 Cal.App.3d 94, 99.
Jan 15, 2021
Los Angeles County, CA
., including Section 1283.05 and all of the act’s other mandatory and permissive rights to discovery) or state equivalent; provided, however, that: in addition to requirements imposed by law, any arbitrator herein shall be a retired California Superior Court Judge (or state equivalent) and shall be subject to disqualification on the same grounds as would apply to a judge of such court.
Jan 14, 2021
Santa Clara County, CA
The motion is unopposed, properly served, and the moving attorney has stated a basis for permissive withdrawal under Rules of Professional Conduct, Rule 3-700. Further, the motion satisfies the requirements of Cal. Rules Court, Rule 3.1362. Accordingly, the motion by Bruce J. Zabarauskas of Thompson & Knight LLP to be relieved as counsel of record for defendants Michael Katz and Clearstone Energy, LLC is GRANTED.
Jan 14, 2021
Orange County, CA
Initial Note Ruby Brothers contends it is seeking leave to file a compulsory cross-complaint, such that the motion can only be denied upon an affirmative showing of bad faith. Ruby Brothers is incorrect. There are no compulsory cross-complaints against parties other than the plaintiff. All such cross-complaints are permissive. CCP §428.10.
Jan 14, 2021
Los Angeles County, CA
Initial Note Ruby Brothers contends it is seeking leave to file a compulsory cross-complaint, such that the motion can only be denied upon an affirmative showing of bad faith. Ruby Brothers is incorrect. There are no compulsory cross-complaints against parties other than the plaintiff. All such cross-complaints are permissive. CCP §428.10.
Jan 14, 2021
Los Angeles County, CA
Defendant’s citation to CCP § 426.60 is inapposite and misleading, as that section applies to failure to plead via compulsory cross-complaint. Defendant does not articulate prejudice from the delay in seeking leave to amend such as would justify denial of leave to amend. “Leave to amend is in general required to be liberally granted (citation omitted), provided there is no statute of limitations concern.
Jan 14, 2021
Employment
Wrongful Term
Los Angeles County, CA
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