From: Charles Cox [mailto:email@example.com]
Sent: Monday, October 15, 2012 8:01 AM
To: Charles Cox
Subject: Weekly legal newsletter – Leave to Amend Pleading or Compulsory Cross-Complaint
By Stan Burman:
The topic of this issue of the newsletter is a brief discussion about requesting leave of court to file a compulsory cross-complaint in the State of California. Many times during the course of litigation, particularly during the discovery process, a party will discover facts that support affirmative claims for relief which evolve from "a series of acts or occurrences logically interrelated", which are therefore related causes of action subject to forfeiture if not pleaded in the action.
Code of Civil Procedure § 426.50 states that, “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 subdivision shall be liberally construed to avoid forfeiture of causes of action”.
Note that section 426.50 also allows a party to request leave of court to amend their cross-complaint to add additional causes of action at any time during the course of the action.
A California Court of Appeal has ruled that a motion for leave of court to file a cross-complaint at any time during the course of an action must be granted unless bad faith of the moving party is shown.
See Silver Organizations Ltd. v. Frank (1990) 217 Cal.App 3d 94, 98-99 which stated that, “The legislative mandate is clear. A policy of liberal construction of section 426.50 to avoid forfeiture of causes of action is imposed on the trial court. A motion to file a cross-complaint at any time during the course of the action must be granted unless bad faith of the moving party is demonstrated where forfeiture would otherwise result. Factors such as oversight, inadvertence, neglect, mistake or other cause, are insufficient grounds to deny the motion unless accompanied by bad faith”
The Court also ruled in Silver Organizations Ltd. v. Frank, at 100, that “Our review of the entire record fails to reveal, directly or inferentially, any substantial evidence of bad faith by the appellants. Looking at the entire period between the filing of the complaint and the denial of the section 426.50 motion, a time frame of less than six months, we find nothing in appellants’ words or conduct remotely suggesting dishonest purpose, moral obliquity, sinister motive, furtive design or ill will”.
In Silver Organizations Ltd. v. Frank the Court of Appeal ruled that a time period of less than six months between the filing of a complaint and a motion to file a compulsory cross-complaint did not constitute bad faith
While other cases have ruled that a lengthy delay of over six months may constitute bad faith, the decision in Silver Organizations Ltd. v. Frank has not been disapproved or otherwise disagreed with in any other published case in the State of California as of the date of this newsletter. In fact, several up to date legal treatises mention Silver Organizations Ltd. v. Frank in their 2012 edition, including the Rutter, Cal. Practice Guide: Civ. Pro. Before Trial CH. 6-D, D. Cross-Complaint, and California Civil Practice Procedure s 9:125, Time for filing cross-complaints.
Howver a party should file their motion within six months or less to avoid the possibility of the court denying their motion.
The author of this newsletter, Stan Burman, is a freelance paralegal who has worked in California civil litigation since 1995.