BREDA MITCHELL VS. MARTINA MITCHELL ET AL

Set for Law and Motion/Discovery Calendar on Thursday, July 23, 2026, Line 1.

Cross-defendant Breda Mitchell's motion to strike the cross-complaint filed by cross-complainant Martina Mitchell is granted. The cross-complaint is stricken because Martina was required to seek leave of court to file and she did not.

The arcane issue presented by this motion is whether the word "complaint" in CCP 428.50(a) includes both an original complaint and an amended complaint or only an original complaint. The parties have not cited any published case law addressing this issue and I could not locate any case law on the issue. A leading, authoritative, and highly respected treatise states: "[L]eave of court will be required when defendant seeks to cross-complain against plaintiff after having previously filed an answer." (Brown and Weil, California Practice Guide: Civil Procedure Before Trial (TRG 2025 Update) 6:555(emphasis in original)). I agree.

As a matter of statutory interpretation, supported by strong "practical considerations" to avoid "adversely [impacting] on the ability of trial courts to administer their calendars efficiently" (Loney v. Superior Court (1984) 160 Cal. App. 3d 719, 723), I construe the word "complaint" in CCP 428.50(a) to refer only to an original complaint, and not to an amended complaint. If Martina's position were adopted, that would mean that a defendant who had never previously filed a cross-complaint could file one mid-trial if the court allowed the plaintiff to amend her complaint to make only a technical, non-substantive change.

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