MICHAEL MITCHELL, ET AL. VS. CITY OF BURLINGAME, ET AL.

August 24, 2026 LAW AND MOTION CALENDAR PAGE 2 Judge: HONORABLE DAVID A. SILBERMAN, DEPARTMENT 11 ________________________________________________________________________ Case Title / Nature of Case

02:00 PM 22-CIV-01964 MICHAEL MITCHELL, ET AL. VS. CITY OF BURLINGAME, ET AL. LINE 1

MICHAEL MITCHELL JULIE L. FIEBER CITY OF BURLINGAME TODD H. MASTER

CROSS-DEFENDANT: ANVIL BUILDERS, INC.’S MOTION FOR APPLICATION FOR LEAVE TO FILE CROSS-COMPLAINT

TENTATIVE RULING:

The Motion is DENIED. The moving party seeks leave to file what appears to be a permissive crosscomplaint against brand new parties on the (metaphorical) eve of trial. The moving party impliedly concedes that it was always aware of the existence of the new parties. The only explanation for the extremely late attempt to add them is that the current counsel for the moving party is “new”. There is no showing supporting a finding of either good faith or interests of justice. Granting the motion will likely result in another delay of the trial of at least a year in a case that is more than 4 years old.

That is not in the interests of justice. And counsel for the moving party made its appearance on August 29, 2025, apparently was aware of its desire to file a cross-complaint by no later than January 2026 and then inexplicably waited another five months to file this motion. It is notable to the Court, although not dispositive, that counsel writes “O’Brien Law P.C. has only been in this matter approximately 6 months”, which is not factual. As noted, O’Brien Law substituted in almost 10 months prior to filing this motion.

A reasonable inference that can be drawn from this timeline is that the purpose of this motion is to delay the trial.

In a bullet point form replete with typos and changes in font, moving party cites three cases:

Silver Organizations Ltd. v. Frank (1990) 217 Cal.App.3d 94 reversed a trial court’s failure to grant a motion to file a cross-complaint under the good faith standard. But moving party has provided no analysis as to why that standard applies. Silver is applying Section 426.30 of the Code of Civil Procedure, which applies to cross-claims by a defendant against a plaintiff. These cross-claims are not against a plaintiff. And, moving party also does not cite a single piece of authority in support of the proposition that this is a compulsory cross-complaint whereas Plaintiff cites cases that support that it does not (that moving party does not even attempt to grapple with).

But again, even if the good faith standard did apply, the most reasonable explanation for the timing of this motion is to delay trial. Even assuming that the Court were to ignore the years that the moving party was represented by counsel and did not seek leave to file these cross claims (which distinguishes this case from Silver), moving party provides no facts explaining how it “discovered” the “need” for them, when it “discovered” its “need” for them or why it waited five months from the time it clearly knew of the “need” for them to actually file the motion when it knew an already continued trial was scheduled.

In contrast, Plaintiffs provide evidence that would support a conclusion that moving party knew or should have known of the existence of the potential cross-defendants for years.

County of Los Angeles v. Quinn Emanuel Urquhart & Sullivan (2025) 115 Cal.App.5th 489 is apparently only cited so that the moving party can distinguish it. But again, it is applying the standard for compulsory

August 24, 2026 LAW AND MOTION CALENDAR PAGE 3 Judge: HONORABLE DAVID A. SILBERMAN, DEPARTMENT 11 ________________________________________________________________________ counter-claims by a defendant against a plaintiff. Regardless, like Quinn, the moving party here waited an inexplicable and extended amount of time to seek leave.

Finally, it cites Gherman v. Colburn (1977) 72 Cal.App.3d 544, again presumably to distinguish it. And again, this is a compulsory counter-claim case. But as in Gherman, the Court does conclude, in affirming the decision of the trial court to deny amendment, that the most likely explanation for the timing of the motion, as here, was as a “tactical, strategic maneuver”.

In reply, the moving party argues in the last sentence if its reply brief that the new parties are necessary and cites Code of Civil Procedure 389. This argument is made for the first time in reply and the Court declines to consider it. But even if it did, the moving party provides no authority for the argument and it would be rejected on its merits. And despite being aware that the Court might apply the “interests of justice” standard, moving party does not even attempt to argue that it satisfies it (despite referencing it) and the Court deems that a waiver.

Any party who contests a tentative ruling must email Dept11@sanmateocourt.org with a copy to all other parties by 4:00 p.m. stating, without argument, the portion(s) of the tentative ruling that the party contests.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for the prevailing party shall prepare for the Court’s signature a written order consistent with the Court’s ruling pursuant to California Rules of Court, rule 3.1312 and provide written notice of the ruling to all parties who have appeared in the action, as required by law and by the California Rules of Court. Please note that Local Rule 3.403(b)(iv) states in part “prevailing party on a tentative ruling is required to prepare a proposed order REPEATING VERBATIM the tentative ruling” (emphasis added). The order should be e-filed only, do not email or mail a hard copy to the Court.