Arguello v. Moran Law Firm, LLP

Here, defense counsel has submitted his declaration, in which he states that he needs to conduct plaintiff’s deposition in order to test his claims that he worked overtime without pay, that he was denied meal and rest breaks, and that he was not timely paid his wages on separation, among other issues. (Dobbins decl., ¶¶ 5, 8.) Defendant contends that it is essential to take plaintiff’s deposition on these issues because plaintiff’s motion relies on his own declaration to prove his claim that he regularly worked over 50 hours per week, arrived early, stayed late, and worked through breaks. (Id. at ¶ 9.) “Defendant cannot fairly respond to those assertions without examining Plaintiff about the dates, calculations, records, tasks, interruptions, and assumptions underlying them.”

Defense counsel also claims that the facts that defendant seeks are likely to exist, as plaintiff has claimed that he worked overtime and through meal and rest breaks, and that he is likely to have records or memory aids to help him reconstruct his work time. (Id. at ¶ 10.) Defendant has not been able to take plaintiff’s deposition despite diligent efforts to do so because plaintiff has filed an anti-SLAPP motion, which stayed discovery. (Id. at ¶ 11.) Plaintiff has taken the position that his deposition cannot go forward while the anti- SLAPP motion is pending.

Thus, defendant has made a sufficient showing that it needs a continuance to conduct discovery and take plaintiff’s deposition, which is likely to produce evidence that would be helpful in opposing plaintiff’s motion for summary judgment or adjudication. While plaintiff opposes the request for a continuance and argues that defendant has unreasonably refused to accept his offer to allow a limited deposition to be taken as long as it does not involve any questions related to the cross-complaint, defense counsel claims that any deposition would necessarily seek information about all of the claims and cross-claims, which involve overlapping issues.

Defendant deserves to be allowed to conduct a deposition of plaintiff before having to oppose the summary judgment motion, as many of plaintiff’s wage and hour claims depend heavily on whether he actually worked overtime, worked through meal and rest breaks, and was not paid his final wages promptly on separation. It does not appear that defendant’s conduct in refusing to conduct a partial deposition of plaintiff is so unreasonable as to warrant denying its request for a continuance so that it can take plaintiff’s deposition. To deny the continuance would effectively deny defendant’s right to obtain facts that might allow it to determine if there are any triable issues of fact with regard to plaintiff’s wage and hour claims.

Also, to the extent that plaintiff argues that defendant does not need to take his deposition because defendant has not disputed most of the facts underlying his motion, plaintiff ignores the fact that much of his motion depends on whether he actually worked overtime, worked through meal and rest breaks, and was not timely paid his final wages after he was terminated. The only evidence that plaintiff submits to establish these key issues is his own declaration, as well as the declaration of his mother. Defendant needs to depose plaintiff in order to determine whether there are any disputed facts regarding 5 these issues. It would be a denial of defendant’s due process rights to grant summary judgment without first allowing defendant to depose plaintiff and ask him about whether he actually worked overtime, worked through meal and rest breaks, and did not receive a timely final paycheck.

In addition, while plaintiff objects that there will not be enough time to continue the hearing date on the summary judgment motion and take his deposition before the trial begins on August 24, 2026, the court has now granted a continuance of the trial date until January of 2027. Thus, there is sufficient time to continue the summary judgment hearing and take plaintiff’s deposition before the continued trial date. Therefore, the court intends to grant the requested continuance and allow defendant to take plaintiff’s deposition before the continued hearing date. The court will set the continued hearing on December 15, 2026, with defendant’s opposition due November 25, 2026, and the reply due December 4, 2026.

Plaintiff’s Demurrer, Motion to Strike, Special Motion to Strike, and Motion to Sever or Bifurcate the Trial on the Cross-Complaint: The court intends to strike defendant’s crosscomplaint sua sponte on the ground that defendant did not seek or obtain leave of court before filing the cross-complaint. Also, in light of the order striking the cross-complaint, the court finds that plaintiff’s demurrer, motion to strike, special motion to strike, and motion to sever the trial of the cross-complaint are moot.

Normally, a defendant may file their cross-complaint against the plaintiff as a matter of right if they file it at the same time that they file their answer. (Code Civ. Proc., § 428.50, subd. (a).) However, if the defendant does not file the cross-complaint with their answer, they need to obtain leave of court to file the cross-complaint. (Code Civ. Proc., § 426.50.) Thus, if the proposed cross-complaint is compulsory, leave must normally be granted so long as defendant is acting in good faith. (Ibid.)

However, the filing of a cross-complaint for malicious prosecution of the main action will not usually be allowed, as the entire main action has to be terminated in favor of the defendant before the malicious prosecution action may be filed, even if the plaintiff dismisses several of the claims, as long as the action proceeds on others. (Babb v. Superior Court (Huntington) (1971) 3 Cal.3d 841, 846; Jenkins v. Pope (1990) 217 Cal.App.3d 1292, 1299-1300.) In the absence of stipulation, the defendant seeking leave to file a crosscomplaint must file a noticed motion supported by points and authorities and a declaration of counsel, as well as a copy of the proposed cross-complaint. (Weil & Brown, Cal.

Civ. Pro. Before Trial (The Rutter Group 2026) Ch. 6-D, Cross-Complaints, ¶ 6:560.) “The declarations of defendant's counsel should show that it would be ‘in the interest of justice’ to grant leave to file, and some reasonable excuse why the crosscomplaint was not filed earlier (mistake, inadvertence, excusable neglect or, most commonly, recent discovery of new facts).” (Id. at ¶ 6:562, italics in original.)

In the present case, defendant filed its answer to the complaint on November 25, 2024. Defendant did not file a cross-complaint against plaintiff at the time it filed its answer. Instead, it waited until February 13, 2026, almost a year and a half later, before filing its cross-complaint for malicious prosecution and abuse of process against plaintiff. Defendant did not file a notice of motion for leave to file the cross-complaint, nor did it 6 provide any authorities, argument, or evidence to explain why it waited more than a year after it filed its answer to file the cross-complaint. It has not shown that the filing of the cross-complaint would be in the interest of justice, or that it recently discovered new facts that would justify the late filing. It never sought or obtained an order from the court to permit it to file the cross complaint.

Therefore, defendant has not complied with the procedures for filing a crosscomplaint after it filed its answer, and the cross-complaint is not properly before the court. As a result, the court intends to strike the cross-complaint on its own motion as improperly filed. (Code Civ. Proc., § 436.) If defendant wishes to file a cross-complaint, it must file and serve a noticed motion with supporting points and authorities, evidence, and a copy of the proposed cross-complaint. In addition, defendant needs to make a showing that it should be allowed to file cross-complaint because it is in the interests of justice. The court will also deny the plaintiff’s demurrer and motions related to the cross-complaint, as they are moot in light of the court’s finding that the cross-complaint was improperly filed.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: KCK on 07/09/26. (Judge’s initials) (Date)

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