Motion for Leave to File Cross-Complaint
In the settlement agreement, the parties agreed that Defendants would make three $20,000.00 payments on February 15, May 15, and August 15 of 2025. (See id., Exh. A.)
Plaintiff also submitted evidence that the parties simultaneously executed a Joint Stipulation for Future Entry of Judgment, and the parties agreed a judgment would be entered if Defendants failed to cure any breaches of the settlement agreement, or if they otherwise failed to pay the settlement. (See id., ¶ 3, Exh. B.)
Further, Plaintiff presented evidence that while Defendants paid $25,000 of the $60,000 required under the settlement agreement, they have not paid the remaining balance. (See id., ¶¶ 4, 6-13, 15, Exh.s C, D, F-J.)
The evidence shows that Defendants offered to make one final payment of $10,000 in satisfaction of the $35,000 they still owed and Plaintiff rejected this offer. (See id., ¶ 14.)
This evidence is sufficient to show the existence of a valid settlement agreement, that Defendants have breached that settlement agreement, and that Plaintiff is entitled to entry of judgment in the sum of $35,000.
In addition, Plaintiff has shown that he is entitled to reasonable attorney’s fees in the amount of $5,000. (See id., ¶¶ 16-17, Exh B.)
Defendants have failed to file an opposition or respond to the motion and thus, have waived any arguments regarding the motion. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 288 [failure to address or oppose issue in motion constitutes waiver of that issue]; see DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 566 [holding that failure to challenge contention in brief results in the concession on that issue].)
Therefore, the court will grant the motion.
Plaintiff shall give notice of this ruling.
6 Cohen vs. Grande Motion for Leave to File Cross-Complaint
Defendants Peter M. Grande’s and Wendy J. 30-2024-01423235 Grande’s Motion for Leave to File Cross-Complaint GRANTED.
Defendants Peter M. Grande’s and Wendy J. Grande are ORDERED to file the proposed Cross- Complaint attached as Exhibit 6 to the Declaration of Lance D. Orloff within 15 days of this ruling and to serve the Cross-Complaint upon all named Cross-Defendants within 60 days of this ruling.
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Pending Motion
Defendants Peter M. Grande and Wendy J. Grande move for leave to file a Cross-Complaint.
Standard for Leave to File Cross-Complaint
Code of Civil Procedure Section 426.50 provides that
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.
There is a liberal policy regarding granting leave to file cross-complaints. (See Align Technology, Inc. v. Bao Tran (2009) 179 Cal.App.4th 949, 967; Weil & Brown, Cal. Prac. Guide, Civ. Proc. Before Trial (The Rutter Group 2022) ¶ 6:557.)
If the proposed cross-complaint is permissive, a party may file a cross-complaint “at any time before the court has set a date for trial.” (Code Civ. Proc., § 428.50, subd. (b).)
However, if a party fails to file a permissive cross- complaint before the date set for trial, the party
“shall obtain leave of court to file any crosscomplaint,” which may be granted “in the interests of justice.” (Code Civ. Proc., § 428.50(c).)
On the other hand, if the proposed crosscomplaint is compulsory, leave must be granted so long as defendant is acting in good faith. (Code Civ. Proc., § 426.50; Weil & Brown, Cal. Prac. Guide: Civ. Proc. before Trial (The Rutter Group 2022) ¶ 6:555.)
A compulsory cross-complaint is a cross-complaint that is asserted against the plaintiff and related to the subject matter of the complaint. (Code Civ. Proc., § 426.30.) A cross-complaint is “related” to the complaint if it arises out of the same transaction, occurrence, or series of transactions or occurrences as the complaint. (Code Civ. Proc., § 426.10(c).) All other cross-complaints are permissive cross-complaints.
In order to be related, there does not need to be “’an absolute identity of factual backgrounds for the two claims, but only a logical relationship between them.’ At the heart of this approach is the question of duplication of time and effort; i.e., are any factual or legal issues relevant to both claims?” (Currie Medical Specialties, Inc. v. Bowen (1982) 136 Cal.App.3d 774, 777, citations omitted, quoting United Artists Corp. v. Masterpiece Prods. (2d Cir. 1955) 221 F.2d 213, 216.)
Claims that are only loosely related in that they involve some of the same parties and the same matter, directly or indirectly, are not logically related if the trial of the claims does not involve a duplication of time and effort due to the fact that there are factual and legal issues that are relevant to both claims. (See ZF Micro Devices, Inc. v. TAT Capital Partners, Ltd. (2016) 5 Cal.App.5th 69, 84.)
Here, the proposed Cross-Complaint is compulsory because it relates to the same set of facts as the Complaint and Defendants are now claiming an interest in the same property as Plaintiff does in the Complaint.
Further, Defendants provide evidence that they discovered the theories for affirmative relief after Plaintiff’s deposition and that they now wish to
assert claims seeking that relief. (See Decl. of Lance D. Orloff (Orloff Decl.), ¶¶ 7-8, Exh.s 4-5.)
While Plaintiff contend that Defendants are acting in bad faith, Plaintiff offers no admissible evidence of this contention.
Defendant also argues that the Cross-Complaint is unnecessary, incomprehensible, duplicative, and “would crumble upon demurrer.”
However, “the preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.)
Therefore, the court will grant the motion.
Defendants shall give notice of this ruling.