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Dannis WoLIvER KELLEY
275 BATTERY STREET, Suite 1150
San Francisco, CA 94111
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DWK DMS 32982411
AMY R. LEVINE, State Bar No. 160743
MATTHEW J. TAMEL, State Bar No. 229378
KASMIRA M. BROUGH, State Bar No. 308791
Dannis Woliver Kelley
275 Battery Street, Suite 1150
San Francisco, CA 94111
Telephone: 415.543.4111
Facsimile: 415.543.4384
Attorneys for Defendant
LOS ALTOS SCHOOL DISTRICT
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA CLARA
GIRL DOE, a minor, by her Guardian ad
Litem, Father Doe,
Plaintiff,
v.
LOS ALTOS SCHOOL DISTRICT, and
DOES 1 through 50,
Defendants.
IL INTRODUCTION
Case No. 17CV307094
LOS ALTOS SCHOOL DISTRICT’S
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION
FOR LEAVE TO FILE CROSS-
COMPLAINT
Date : October 2, 2018
Time : 9:00 a.m.
Dept : 19
Judge : Hon. Peter H. Kirwan
Trial: October 15, 2018
Complaint Filed: March 8, 2017
Exempt from filing fees pursuant to Gov.
Code. § 6103.
Defendant Los Altos School District hereby seeks leave from the Court to file a cross-
complaint to name E.M. Education Ltd., dba The Children’s House of Los Altos (“Children’s
House”) and Roes 1 through 20 as cross-defendants. Granting leave will further the interest of
justice as the District will suffer hardship and prejudice if it is unable to file a cross-complaint for
contribution, indemnity, equitable indemnity, and declaratory relief. A proposed copy of the
cross-complaint sought to be filed is attached hereto as Exhibit | to the declaration of Matthew J.
Tamel.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE TO FILE
CROSS-COMPLAINTDannis WOLIVER KELLEY
275 BATTERY STREET, Sure 1150
San Francisco, CA 94111
DWK DMS
3298241 v1
Il. FACTUAL BACKGROUND
The present litigation is a tort case arising out of incident(s) alleged to have occurred at
Loyola Elementary School (“Loyola”), a District elementary school. Plaintiff, Girl Doe, asserts
negligence and negligence per se claims against the District, pursuant to Education Code section
220, 233.5, and 44807. More specifically, Plaintiff alleges that in January 2016, while she was a
student at Loyola, Plaintiff suffered injuries when two classmates “attacked, bullied and
harassed” her behind a shed (“Shed”) located on the Loyola playground premises. The District is
the only named defendant and has appeared in this matter.
The Shed at issue is owned by Children’s House, and was placed on the Loyola premises
pursuant to a lease agreement between the District and Children’s House. (Declaration of
Matthew J. Tamel (“Tamel Decl.”), {1 4, 6.) Under the terms of that lease agreement, Children’s
House is obligated to defend and indemnify the District for any liability, claims, and damages
arising out of performance of that agreement as well as for any activity or thing done in
conjunction with that agreement. (Ibid., 4.) Until recently, District officials mistakenly
believed that the Shed was erected, owned, accessed, and maintained by the District. (Jbid.) On
approximately August 24, 2018, the District became aware that the Shed is owned, accessed, and
maintained by Children’s House. (Jbid., 6.) Based on this and other newly discovered
information, it has recently been determined that the District is being held liable for negligence
for which Children’s House and Roes 1 through 20, and each of them is jointly and/or solely the
responsible party.
On May 24, 2018, the Court set trial in this matter for October 15, 2018. Discovery is
ongoing.
UI. LEGAL ARGUMENT
A. A Court May Grant Leave to File an Untimely Cross-Complaint
California Code of Civil Procedure § 428.10 governs the filing of permissive cross-
complaints, providing in relevant part: “A party against whom a cause of action has been asserted
in a complaint or cross-complaint may file a cross-complaint setting forth ... Any cause of action
he has against a person alleged to be liable thereon, whether or not such person is already a party
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE TO FILE
CROSS-COMPLAINTDannis WoLIvER KELLEY
275 BATTERY STREET, SurTe 1150
SAN Francisco, CA 94111
DWK DMS
3298241 v1
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, subd. (a), (b).)
The time restrictions for the filing of permissive cross-complaints are set forth by Code
Civ. Proc. § 428.50(a) and (b), which provides that a party may file a cross-complaint before or at
the same time as the answer to the complaint, or any time before the court has set a date for trial.
(Code Civ. Proc., § 428.50, subd. (a), (b).) In the event that a party fails to meet these time
restrictions, Code Civ. Proc. § 428.50(c) authorizes trial courts to grant leave to file untimely
permissive cross-complaints, providing as follows: “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, subd. (c).) Leave to file a late permissive cross-complaint is “solely within the trial
court’s discretion.” (Crocker Nat. Bank vy. Emerald (1990) 221 Cal.App.3d 852, 864.) A cross-
complaint may be filed close to the time of trial on the underlying complaint. (Orient Handel v.
United States Fid. & Guar. Co. (1987) 192 Cal.App.3d 684, 701.) The purpose of cross-
complaints “is to have a complete determination of a controversy among the parties in one action,
thus avoiding circuity of action and duplication of time and effort.” (City of Hanford v. Superior
Ct. (1989) 208 Cal.App.3d 580, 587.)
B. Granting Leave to File the Proposed Cross-Complaint is in the Interest of
Justice
Through this motion, Defendant Los Altos School District seeks leave to file a cross-
complaint against Cross-Defendants E.M. Education, Ltd., dba The Children’s House of Los
Altos (“Children’s House”) and Roes 1 through 20, as authorized by Code Civ. Proc. § 428.10(b).
Granting such leave is in the interest of justice. (Code Civ. Proc., § 428.50, subd. (c).) The
District’s proposed cross-complaint asserts claims for express indemnity, equitable indemnity,
contribution, and declaratory relief. These causes of action arise out of the same transaction,
occurrence, or series of transactions or occurrences as the case brought by Plaintiff against the
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE TO FILE
CROSS-COMPLAINTDANNIS WOLIVER KELLEY
275 BATTERY STREET, SuITE 1150
San Francisco, CA 94111
DWK DMS
3298241 v1
District. The District has entered into successive lease agreements with Children’s House for the
use of a portion of the premises at the District’s Loyola Elementary School, with the most recent
one being in 2014. (Tamel Decl., 4.) In these agreements, Children’s House agreed to defend,
indemnify and hold the District harmless for all claims or demands for damages arising out of,
connected with, or resulting from, performance of the agreements. (/bid.) Moreover, Plaintiff's
injuries, if any, were occasioned in whole or in part by the negligent acts or omissions of
Children’s House and/or Roes 1 through 20. Said acts are relevant to a determination of
Plaintiffs underlying claims.
The nature of the District’s claims, including for express and equitable indemnity, merits
an order granting leave to file a cross-complaint. A “defendant may generally file a cross
complaint against any person from whom he seeks equitable indemnity.” (Platt v. Coldwell
Banker Residential Real Estate Services (1990) 217 Cal.App.3d 1439, 1444.) “The purpose of
equitable indemnification is to avoid the unfairness, under joint and several liability theory, of
holding one defendant liable for the plaintiff's entire loss while allowing another responsible
defendant to escape ‘scot free’.” (/d. [citation omitted].)
Although the District may pursue indemnity claims against Children’s House “either (1)
by filing a cross-complaint in the original tort action or (2) by filing a separate indemnity action
after paying more than its proportionate share of the damages through the satisfaction of a
judgment or through a payment in settlement,” (Henry v. Superior Ct. (2008) 160 Cal.App.4th
440, 449 [citation omitted]), these are not equivalent options. If the Court denies the District’s
Motion, the District will be forced to pursue the latter after relying on an “empty chair defense” in
this action, and will be placed at a substantial disadvantage in doing so. It is readily apparent that
“at trial where a defendant asks a jury to apportion fault, a significant difference exists between
having a joint tortfeasor present as a non-party witness, and having him present as a cross-
defendant.” (Platt, supra, 217 Cal.App.3d at 1448.) The District will accordingly be prejudiced
both in its defense of Plaintiff's claims in the current action, and in being forced to bring an
entirely separate action, at significant expense and outlay of time, to recover those costs from
another defendant that the District should not have been forced to bear in the first instance. The
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE TO FILE
CROSS-COMPLAINTDannis WoLIVER KELLEY
275 Battery STREET, Sure 1150
San Francisco, CA 94111
DWK DMS
3298241v1
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“interest of justice” warrants leave for the District to file the cross-complaint in this action.
fl. The Delay in Seeking Leave to File a Cross-Complaint is Excusable
The instant motion is brought more than thirty days before trial, and does not follow a bad
faith delay. Rather, the District’s delay in seeking the court’s permission to file its proposed
cross-complaint is due to excusable oversight. The Shed at issue is one of several located at
District school sites and the District did not question ownership. This case is unusual in that trial
was set prior to completion of discovery. (Sée Loney v. Superior Ct. (1984) 160 Cal.App.3d 719,
723 [‘‘it is reasonable to allow the parties to bring in new parties by way of cross complaint up to
the time of trial setting...at that stage, it may be assumed that the original parties have engaged in
discovery and investigated the applicable law and facts, and have learned of any new parties or
additional causes of action that should be included in the litigation... This is not to say additional
claims can never be presented after the first trial date is assigned...”].)
Although trial in this case was set on May 24, 2018, discovery has been ongoing since
then, and it is through this process that the District learned of Children’s House’s relevance in this
action. On August 24, 2018, the District attempted to access the shed, and when it was unable to
gain this access, learned that it was owned by Children’s House. (Tamel Decl., [ 6.) Thereafter,
the District immediately began further investigation, leading to the instant motion and proposed
cross-complaint. (Tamel Decl., 17,9, 10.) Any delay is the result of inadvertence, not bad faith.
Acting in good faith, the District promptly notified Plaintiff of this newly-discovered issue and
the possibility of a cross-complaint, as well as the Court at the August 28, 2018, Case
Management Conference. (Tamel Decl., [ 8.) The District will be prejudiced, as set forth above,
if it is forced to bring a separate action for indemnity as a result of this delay. Plaintiff, having an
additional defendant at trial, will not be so prejudiced.
2. Trial Preference Should Not Prevent the Filing of a Cross-Complaint
It is anticipated that Plaintiff will assert that her trial preference, granted pursuant to Code
of Civil Procedure section 36, subdivision (b), will operate as a bar to the District’s filing of a
cross-complaint. The District’s due process rights should not be disregarded simply because
Plaintiff’s motion for trial preference was granted. (See Roe v. Superior Ct. (1990) 224
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE TO FILE
CROSS-COMPLAINTDannis WOLIVER KELLEY
275 BATTERY STREET, Suite 1150
SAN Francisco, CA 94111
DWK DMS
3298241 v1
Cal.App.3d 642, 643 n.2 [recognizing that it may not be possible to bring matters to trial within
the limits of CCP 36 because of due process implications]; See also Weil & Brown, Cal. Prac.
Guide: Civ. Proc. Before Trial (The Rutter Group 2007) § 12:248.2 [discussing due process as a
possible limitation on a request for trial preference]; Peters v. Superior Ct. (1989) 212
Cal.App.3d 218, 227 [leaving open possibility that CCP 36 may implicate due process rights by
depriving a defendant of adequate time to prepare for trial].) Leave to file a cross-complaint may
be granted “at any time during the course of the action” and is not expressly limited either by the
type of action in which, or the date on which, leave is sought. (Code Civ. Proc., § 428.50, subd.
(c) (emphasis added).) The District has previously expressed concerns that Plaintiff’s trial
preference would adversely impact discovery. (Tamel Decl., { 5.) Having now determined, in
the course of discovery, of the existence of a cross-defendant, it would be unjust to deny the
District the opportunity to cross-claim against such a party. “[P]laintiffs ‘no longer have the
unilateral right to determine which defendant or defendants should be included in an action’
under the comparative equitable indemnity doctrine.” (Platt, supra, 217 Cal.App.3d at 1448
(citation omitted).)
3. Granting Leave to File the Proposed Cross-Complaint Accords With
Public Policy Considerations
Permitting the District to file its cross complaint against Children’s House will “promote
the public policy considerations underlying multiparty tort litigation: the maximization of
recovery to the injured party; settlement of the injured party's claim; and equitable apportionment
of liability among concurrent tortfeasors.” (Mullin Lumber Co. v. Chandler (1986) 185
Cal.App.3d 1127, 1131-1132; see also Bewley v. Riggs (1968) 262 Cal.App.2d 188, 190 [“[t]he
law abhors a multiplicity of actions”); Nomellini Const. Co. v. Harris (1969) 272 Cal.App.2d 352,
356 [“code provision [permitting cross-complaints] should be interpreted liberally”].) Resolution
of Plaintiff's claims against the District as well as the District’s claims against Children’s House
in one action works in favor of judicial economy and the interests of the parties involved.
IV. CONCLUSION
For the foregoing reasons, Los Altos School District respectfully requests that this Court
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE TO FILE
CROSS-COMPLAINTDaNNis WOLIVER KELLEY
275 BATTERY STREET, SUITE 1150
SAN Francisco, CA 94111
DWK DMS
3298241V1
oC Oo IN Da
grant the District leave of court to file a cross-complaint naming E.M. Education Ltd., dba The
Children’s House of Los Altos (“Children’s House”) and Roes 1 through 20 as cross-defendants
in this matter.
DATED: September 13, 2018 DANNIS WOLIVER KELLEY
/
By: hecternn
AMY R. LEVINE
MATTHEW J. TAME
KASMIRA M. BROUGH
Attorneys for Defendant
LOS ALTOS SCHOOL DISTRICT
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"MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE TO FILE
CROSS-COMPLAINTDANNIS WOLIVER KELLEY
275 BaTTery STREET, SurTe 1150
San Francisco, CA 94111
DWK DMS
3294570vt
PROOF OF SERVICE
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN FRANCISCO )
Iam employed in the County of San Francisco, State of California. I am over the age of 18
and not a party to the within action; my business address is: 275 Battery Street, Suite 1150,
San Francisco, CA 94111.
On the date set forth below I served the foregoing documents described as
LOS ALTOS SCHOOL DISTRICT’S MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTION FOR LEAVE TO FILE CROSS-COMPLAINT
on interested parties in this action as follows:
Patricia Lewis Joseph Low, IV
Lewis Law P.C. The Law Firm of Joseph H. Low, IV
755 West A Street, Suite 100 100 Oceangate, 12th Floor
San Diego, CA 92101-0700 Long Beach, CA 90802
Tel: 619-225-0747 Tel: 562-901-0840
Email: palewis@lawfirmpal.com Email: joseph@jhilaw.com
Oo (VIA U.S. MAIL) I caused such document to be placed in the U.S. Mail at San
Francisco, California with postage thereon fully prepaid. I am “readily familiar” with
the firm’s practice of collection and processing correspondence for mailing. It is
deposited with the U.S. Postal Service on that same day in the ordinary course of
business. I am aware that on motion of party served, service is presumed invalid if
postal cancellation date or postage meter date is more than one day after date of
deposit for mailing in affidavit.
ol (VIA ELECTRONIC SERVICE) [Code Civ. Proc. Sec. 1010.6; CRC 2.251] by electronic
mailing a true and correct copy through DANNIS WOLIVER KELLEY’s electronic mail
system from jmuniz@dwkesq.com to the email address(es) set forth above, or as
stated on the attached service list per agreement in accordance with Code of Civil
Procedure section 1010.6 and CRC Rule 2.251. The transmission was reported as
complete and without error.
Qo (BY PERSONAL SERVICE) I caused such envelope to be delivered by hand to the
offices of the addressee.
I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct.
Executed on September 13, 2018, at San Francisco, California.
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GYulieAnna Mpjniz
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PROOF OF SERVICE