Loney v. Superior Court

California Court of Appeal Oct 2, 1984 No. Civ. 24324Published

Before: Puglia

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Holding. Code of Civil Procedure section 428.50 requires leave of court to file a third-party cross-complaint once a trial date has been set, even if that date is subsequently vacated.

Issues

Does Code of Civil Procedure section 428.50 authorize a third-party cross-complaint to be filed without leave of court after a trial date has been set but later vacated?

Disposition. denied

Quotations verified verbatim against the opinion

“subdivision (b) requires leave of court to file a third party cross-complaint anytime after the first trial date is set, regardless of whether that date is later vacated by the court.”

“the assignment of the first trial date becomes a logical point at which to cut off the right to file cross-complaints bringing in new parties without permission of court.”

“we conclude that the cross-complaint of petitioners was properly stricken because leave of court was not obtained prior to its being filed.”

Opinion

PUGLIA, P. J.

Charles Milton Loney and June Loney Marco (petitioners) seek an extraordinary writ directing respondent superior court to vacate its order striking their cross-complaint against real party in interest Louis Deadrich. The petition presents the issue whether Code of Civil Procedure section 428.50 authorizes a third party cross-complaint to be filed without leave of court after a trial date has been set but later vacated. We shall deny the petition.

The original complaint was filed in 1979 and amended in 1981. Deadrich is not a party to the main action but with that exception, all other real parties in interest are named plaintiffs. Petitioners are named defendants and they answered the amended complaint. In August 1982, plaintiffs filed an at-issue memorandum. The case has since been set for trial three times. The last trial date assigned, January 31, 1984, was vacated by stipulation of the parties.

On April 30, 1984, when no trial date was pending, petitioners filed a cross-complaint against Deadrich for fraud and negligent misrepresentation. The cross-complaint was based on events occurring between 1967 and 1975, and alleged that the facts underlying the claim were discovered by petitioners on or about April 28, 1981.

Deadrich requested the superior court to strike petitioners’ cross-complaint.

On July 23, 1984, the court ordered petitioners’ cross-complaint stricken.

In support of his motion to strike Deadrich argued that Code of Civil Procedure section 428.50 requires petitioners to obtain leave of court prior

[722]

to filing. Petitioners rely on recent amendments to that section (Stats. 1983, ch. 176, § 1, p. 511), which, they contend, authorize the filing of their cross-complaint without first obtaining the court’s permission.

Newly amended section 428.50 provides: “(a) A party shall file a cross-complaint against any of the parties who filed the complaint or cross-complaint against him or her before or at the same time as the answer to the complaint or cross-complaint.

Loney v. Superior Court

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PUGLIA, P. J.

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