Doe vs. The Thacher School

202300575320CUPO: Doe vs. The Thacher School 08/20/2026 in Department 40 Motion for Leave to File a Cross-Complaint

Below is the Court’s tentative decision with respect to the matter on calendar. The Court may adopt, modify, or change the tentative ruling after hearing. The tentative ruling has no legal effect unless and until adopted by the Court.

I.

Background

On February 14, 2023, Plaintiff Jane Doe 2 (“Plaintiff”) filed a complaint against The Thacher School (“Defendant”) for (1) childhood sexual assault / sexual battery, (2) intentional infliction of emotional distress, (3) sexual harassment, (4) negligent hiring, supervision, and retention, (5) breach of mandatory duty: failure to report suspected child abuse, (6) negligent failure to warn, train, or educate, (7) negligent supervision of a minor, and (8) negligence. Plaintiff alleges, in relevant part, that when she was a student at Defendant’s school, Defendant’s former employee Rod “Jake” Jacobsen (“Jacobsen”) sexually abused and harassed her.

Defendant filed an answer on April 6, 2023. From that date to approximately March 17, 2026, Defendant was represented by Weintraub Tobin Chediak Coleman Grobin (“Weintraub Firm”). On March 18, 2026, Defendant’s present attorneys––Manning Gross + Massenburg LLP–– filed a Notice of Substitution of Counsel.

On July 27, 2026, Defendant filed the instant Motion for Leave to File a Cross-Complaint against non-party Jacobsen for indemnity, contribution and apportionment, and declaratory relief. Plaintiff filed an Opposition on August 7, 2026. Defendant did not file a Reply. Trial is scheduled to commence November 16, 2026.

II.

Discussion

Defendant asserts three bases for the Motion. Each of these arguments is addressed below.

A. Necessary Party

First, Defendant claims that Jacobsen is a necessary party who must be added to the present lawsuit, pursuant to Code of Civil Procedure section 389.

Code of Civil Procedure section 389 states in relevant part that:

(a) A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties . . . . If he has not been so joined, the court shall order that he be made a party. . . .

202300575320CUPO: Doe vs. The Thacher School

(c) A complaint or cross-complaint shall state the names, if known to the pleader, of any persons as described in paragraph (1) or (2) of subdivision (a) who are not joined, and the reasons why they are not joined.

Defendant claims that Jacobsen must be added as a “necessary party” because “Plaintiff cannot have complete resolution of her claims without him being added as a defendant. As detailed in Plaintiff’s Complaint, Plaintiff’s allegations against [Defendant] are intertwined with [Jacobsen]. School districts are not vicariously liable for sexual torts committed by their employees, including teachers. (John R. v. Oakland Unified Sch. Dist. (1989) 48 Cal.3d 438, 447-53.)” (Memo. 5:21-27.) As noted by Plaintiff, however, “John R. is a “highly questioned” decision that has been distinguished and disapproved by numerous courts, including the California Supreme Court’s ruling in C.A. v.

William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 870.” (Opp. 3:13-16.) As further argued by Plaintiff, additional cases disapprove John R., including Doe v. Lawndale Elementary School Dist. (2021) 72 Cal.App.5th 113, 132 and Doe v. United States Youth Soccer (2017) 8 Cal.App.5th 1118, 1129 (providing “to the extent John R. suggests sexual abuse of students by school employees is not reasonably foreseeable, it is inconsistent with the Supreme Court's more recent holding in Hart that school personnel owe students a duty to take reasonable measures to protect them from foreseeable injury, including ‘injuries to a student resulting from a teacher's sexual assault.’”). (Opp. 3:26-4:4.)

Finally, Plaintiff is correct that an employer may be liable for its employee’s acts under a ratification theory. (See C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4the 1094, 1110-1111.)

The Court finds that John R. is not controlling in this matter and that is possible for Defendant to be held liable for Jacobsen’s alleged harms even if he is not joined to this case. Therefore, the Motion is denied to the extent it is based on Code of Civil Procedure section 389.

B. Same Transaction, Occurrence, or Events

Secondly, Defendant argues that leave to file the cross-complaint should be granted under the Court’s permissive authority since it arises out of the same transaction, occurrence, or events, pursuant to Code of Civil Procedure sections 428.10, subdivisions (b)-(c) and 426.50.

A defendant may file a cross-complaint against a third party not already in the action if the cause of action asserted “(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. (b).) A defendant may file a cross-complaint for indemnity against a third party for the same transaction, occurrence, or series of transactions or occurrences in the underlying lawsuit. (See, e.g., Paragon Real Estate Group of San Francisco, Inc. v. Hansen (2009) 178 Cal.App.4th 177, 182-183, 190.) Therefore, it is indisputable that Defendant’s cross-complaint against Jacobsen is allowable.

The issue is whether the leave to file the potential cross-complaint should be granted under the current circumstances. Defendant argues that leave should be granted here under Code of Civil Procedure section 426.50. That statute provides:

202300575320CUPO: Doe vs. The Thacher School

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 statutory scheme provides that a court must grant leave to belatedly file a compulsory cross-complaint1 if the defendant has acted in good faith.

Here, as noted by Plaintiff, Defendant was aware of Jacobsen’s misconduct before Plaintiff filed the Complaint due to an independent investigation and report by the Munger Tolles & Olson LLP law firm (“Munger Tolles”), which was released and published to the public in June 2021. (Opp. 2:20-25.) Moreover, a supplemental report, released and published in February 2023, details additional misconduct by Jacobsen. (Opp. 2:26-28.) Plaintiff filed the Complaint on February 14, 2023. The Complaint expressly makes multiple references to misconduct by Jacobsen.

Defendant answered on April 6, 2023. The instant motion was not filed until more than three years later, on July 27, 2026. Defendant’s Motion fails to provide any reasonable explanation for this protracted more than three-year delay in seeking to file a cross-complaint against Jacobsen. There was no surprise or no newly discovered evidence to explain Defendant’s more than three-year delay in seeking leave to file a cross-complaint against Jacobsen. Although Defendant changed counsel in early 2026, the Weintraub Firm (Defendant’s prior counsel) represented Defendant for three years, presumably had access to the Munger Tolles reports (which were prepared by and on behalf of Defendant and publicly published) and certainly had access to the Complaint, which Defendant answered.

Furthermore, Defendant’s Motion fails to provide any reasonable explanation why leave to file a cross-complaint against Jacobsen should be granted when trial is only a few months away. Therefore, the Court finds that Defendant’s failure to file the cross-complaint was not in good faith.

Defendant also emphasizes that section 426.50 must be “construed liberally to avoid forfeiture of causes of action.” Defendant acknowledges, however, that its potential indemnity claim against Jacobsen has not yet accrued and that the statute of limitations will not begin to run unless and until Defendant pays a judgment or settlement. (Memo. 7:25-8:2.) Consequently, there is no basis to grant leave to avoid a forfeiture.

For the foregoing reasons, the Motion is denied to the extent it is based on Code of Civil Procedure sections 428.10, subdivisions (b)-(c) and 426.50.

C. Interests of Justice

Lastly, Defendant asks the Court to use its discretion to grant the motion in the interests of justice, pursuant to Code of Civil Procedure section 428.50, subdivision (c). That statutory 1 Defendant argues both that the cross-complaint is compulsory and permissive. Even if

compulsory, it is denied due to lack of good faith.

202300575320CUPO: Doe vs. The Thacher School

provision states that “[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.”

Here, the Court finds that the interests of justice weigh in favor of denying the Motion. As stated above, Defendant waited more than three years to request leave to file a cross-complaint against Jacobsen, without any explanation for the delay. Trial is scheduled to commence in three months. On the one hand, granting the motion would inevitably prejudice Plaintiff who – by the time of the November 2026 trial date – will have already waited nearly four years to adjudicate her case and would be subject to a last minute, preventable trial continuance. Additionally, granting the motion would invariably increase the costs and complexity of the instant litigation. On the other hand, denying the motion would not prejudice Defendant who could still seek indemnity from Jacobsen if Plaintiff prevails in this case. Moreover, the indemnity issue would be moot if Plaintiff does not prevail.

For the foregoing reasons, the Court denies the motion to the extent based on Code of Civil Procedure section 428.50, subdivision (c).

III.

Conclusion

For the reasons set forth above, the Motion for Leave to File a Cross-Complaint is DENIED in its entirety.

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