CONNORS VS HARPER

TENTATIVE RULING(S) FOR June 25, 2026 Department S37 – Judge Winston Keh This court follows California Rules of Court, rule 3.1308(b) for tentative rulings. (See San Bernardino Superior Court Local Emergency Rule 8.) Tentative rulings for each law & motion will be posted on the internet (https://www.sb-court.org) by 3:00 p.m. on the court day immediately before the hearing.

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UNLESS OTHERWISE NOTED, THE PREVAILING PARTY IS TO GIVE NOTICE OF THE

RULING.

CONNORS VS HARPER

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TENTATIVE RULING(S):

On October 25, 2023, Plaintiff Alexis Connors, individually and as Tobias Fountain’s successor

in interest, filed a complaint against Karen Harper and Foster Family Home and Small Family

Home Insurance Fund (FSH) alleging causes of action for: (1) wrongful death [Harper]; (2)

survival claims [Harper]; (3) negligence [all Defendants];and (4) declaratory relief [FSH].

Before the Court is Defendant Karen Harper’s motion for leave to file a cross-complaint against

Plaintiff and FSH to allege causes of action for implied indemnity, comparative indemnity,

apportionment of fault, and declaratory relief. FSH opposes, but Plaintiff does not

oppose. Harper does not reply (due May 25, 2026).

Harper explains that she did not file the cross-complaint with her answer because there

was an ongoing criminal investigation against her at the time and the cross-complaint would risk

dismissal when she asserted her Fifth Amendment right against self-incrimination during

discovery. Harper states that now that the statute of limitations has run on any criminal claims,

she seeks to allege indemnity claims in this action.

The declaration of Michael J. La Cilento states that the proposed cross-complaint is attached to

Harper’s motion as Exhibit A. However, the proposed cross-complaint was not attached to the

motion preventing a full analysis. Thus, the Court ordered Harper’s counsel to submit the

missing exhibit and continued the hearing to June 25, 2026. The Court has now reviewed the

proposed cross-complaint.

Legal Standard

A defendant shall file a cross-complaint against any party who filed a complaint or cross-

complaint against him before or at the same time as the answer to the complaint or cross-

complaint. (Code Civ. Proc., § 428.50, subd. (a).) Any other cross-complaint may be filed at any

time before the trial date is set. (Code Civ. Proc., § 428.50, subd. (b); see also Loney v.

Superior Court (1984) 160 Cal.App.3d 719, 722-723 [noting that the assignment of the first trial

date, even if vacated later, is the logical point to cut off the right to file cross-complaints without

permission of the court].)

Compulsory cross-complaints are governed by Code of Civil Procedure section 426.10, et. seq.

Compulsory cross-complaints arise when a named defendant has a related cause of action

against the plaintiff. (Code Civ. Proc., §§ 426.10, subd. (c), 426.30, subd. (a).) A related cause of

action means a cause of action that “arises out of the same transaction, occurrence, or series of

transactions or occurrences” as the complaint. (Code Civ. Proc., § 426.10, subd. (c).) A cause

of action arises out of the “same transactions or occurrences” if the factual or legal issues are

logically related. (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 965 (Align

Technology) [“[T]he ‘logical relationship’ inquiry is the preferred approach in ascertaining

whether a claim arises out of the same transaction or occurrence so that it constitutes a

compulsory counterclaim....”].) To be considered a compulsory cross-complaint, the related

cause of action must have existed at the time defendant served its answer to the complaint. (Id.

at p. 970.)

A defendant who fails to file a compulsory cross-complaint before or at the time of filing an

answer must apply to the court for leave to file a cross-complaint. (Code Civ. Proc., § 426.50.)

Generally, the court must grant leave to file a compulsory cross-complaint whether the failure to

timely file the cross-complaint was due to oversight, inadvertence, mistake, neglect, or another

cause, so long as the party making the motion has not acted in bad faith or no substantial

prejudice to the adverse party is shown. (Silver Organizations Ltd. v. Frank (1990) 217

Cal.App.3d 94, 98-100; Code Civ. Proc., § 426.50.) Judges must liberally construe the provisions

of Code of Civil Procedure section 426.50 to avoid forfeiture of causes of action. A strong

showing of bad faith is required to support an order denying leave to file a compulsory cross-

complaint. (Foot’s Transfer & Storage Co. v Superior Court (1980) 114 Cal.App.3d 897, 902-903

(Foot’s Transfer & Storage).)

A cross-complaint that is not compulsory is permissive. (ZF Micro Devices, Inc. v. TAT Capital

Partners, Ltd. (2016) 5 Cal.App.5th 69, 84.) There are no compulsory cross-complaints against

parties other than plaintiff. (Weil & Brown, Calif. Prac. Guide: Civil Proc. Before Trial (2025) §

6:524.) Cross-complaints filed against co-defendants or third parties not yet involved in the

action are always “permissive.” (Insurance Co. of North America v. Liberty Mutual Ins. Co.

(1982) 128 Cal.App.3d 297, 303.)

A defendant must file a permissive cross-complaint against the plaintiff (i.e., not related to the

events at issue in the complaint) at the time the defendant files an answer to the complaint.

(Code Civ. Proc., § 428.50, subd. (a).) All other permissive cross-complaints may be filed at any

time before the first trial date is set. (Code Civ. Proc., § 428.50, subd. (b).) When a permissive

cross-complaint is not filed within these time frames, leave of court is required. (Code Civ. Proc.,

§ 428.50, subd. (c).)

With respect to a permissive cross-complaint, “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).)

Merits of Harper’s Motion

To the extent Harper’s cross-complaint seeks indemnity against Plaintiff, the cross-complaint is

compulsory. Plaintiff does not oppose Harper’s motion and there is no evidence of Harper’s bad

faith failure to file the cross-complaint earlier.

FSH opposes Harper’s motion arguing that Harper erroneously asserts her cross-complaint is

also compulsory against FSH. FSH asserts it has not filed any claims against Harper, so her

cross-complaint is only permissive as to FSH. FSH argues by mischaracterizing her cross-

complaint, Harper fails to demonstrate that allowing the cross-complaint against FSH is “in the

interest of justice.”

FSH further argues that it has incurred substantial costs in discovery that would be wasted if

Harper is now able to change her discovery answers that asserted her Fifth Amendment rights.

FSH also argues that it has relied on Harper’s assertion of her Fifth Amendment rights and by

allowing Harper to file the cross-complaint, FSH will need to retake Plaintiff’s deposition and take

additional discovery. FSH argues Harper should be required to pay for any such discovery.

FSH does not explain how denying Harper leave to file her cross-complaint here will result in

costs savings if Harper is required to pursue a separate action against FSH and FSH is required

to take the same discovery. It appears to be in the interest of justice to have Harper’s claims

adjudicated in the same action.

RULING

For all the reasons stated above, the Court GRANTS Harper’s Motion in its entirety. The

proposed Summons and Cross-Complaint attached to Harper’s motion are deemed filed and

served on June 25, 2026.