Motion for Leave to File Cross-Complaint
In addition, to the extent Plaintiff seeks more time to serve the Defendants Fu-Yang Davies and Brian Davies, the request is moot as Plaintiff has filed proofs of service showing that both of the named Defendants were served by substituted service on February 18, 2026. (See ROA #20, #21).
The court will take the motion off calendar as moot.
The court clerk shall give notice of this ruling.
4 Schiavo vs. Motion to Compel Arbitration Sterling Jewelers Inc. Defendants Sterling Jewelers Inc.’s and Ardeshir Sherafat’s Motion to Compel Arbitration of Plaintiff’s Claims is taken OFF CALENDAR, pursuant to the court’s order issued April 24, 2026 (ROA #38) and the Request for 30-2025- Dismissal of the entire action of all parties and all causes of action filed 01521984 May 1, 2026 (ROA #41).
5 AP Parpro, Motion for Leave to File Inc. vs. Fulfil Solutions, Inc. Defendant Fulfil Solutions, Inc.’s Motion for Leave to File Cross- Complaint is GRANTED.
30-2025- Defendant Fulfil Solutions, Inc. is ORDERED to file and serve upon all 01531382 named Cross-Defendants the Cross Complaint attached as Exhibit A to the Motion for Leave to File Cross-Complaint within 30 days of this ruling.
The court SETS a Status Conference regarding the filing and service of the Cross Complaint for October 1, 2026 at 10:00 a.m. in Department N15.
All parties or their counsel are ORDERED to appear at the Status Conference ready to give the court an update on the status of the filing and service of, and response to the Cross Complaint.
Pending Motion
Defendant Fulfil Solutions, Inc. moves for leave to file the Cross Complaint attached as Exhibit A to the Motion for Leave to File Cross- Complaint.
Standard for Leave to File Cross-Complaint
Code of Civil Procedure Section 426.50 provides 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.
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There is a liberal policy regarding granting leave to file cross-complaints. (See Align Technology, Inc. v. Bao Tran (2009) 179 Cal.App.4th 949, 967; Weil & Brown, Cal. Prac. Guide, Civ. Proc. Before Trial (The Rutter Group 2022) ¶ 6:557.)
If the proposed cross-complaint is permissive, a party may file a crosscomplaint “at any time before the court has set a date for trial.” (Code Civ. Proc., § 428.50, subd. (b).) However, if a party fails to file a permissive cross-complaint before the date set for trial, the party “shall obtain leave of court to file any cross-complaint,” which may be granted “in the interests of justice.” (Code Civ. Proc., § 428.50(c).)
On the other hand, if the proposed cross-complaint is compulsory, leave must be granted so long as defendant is acting in good faith. (Code Civ. Proc., § 426.50; Weil & Brown, Cal. Prac. Guide: Civ. Proc. before Trial (The Rutter Group 2022) ¶ 6:555.)
A compulsory cross-complaint is a cross-complaint that is asserted against the plaintiff and related to the subject matter of the complaint. (Code Civ. Proc., § 426.30.) A cross-complaint is “related” to the complaint if it arises out of the same transaction, occurrence, or series of transactions or occurrences as the complaint. (Code Civ. Proc., § 426.10(c).) All other cross-complaints are permissive cross-complaints.
In order to be related, there does not need to be “’an absolute identity of factual backgrounds for the two claims, but only a logical relationship between them.’ At the heart of this approach is the question of duplication of time and effort; i.e., are any factual or legal issues relevant to both claims?” (Currie Medical Specialties, Inc. v. Bowen (1982) 136 Cal.App.3d 774, 777, citations omitted, quoting United Artists Corp. v. Masterpiece Prods. (2d Cir. 1955) 221 F.23d 213, 216.)
Proposed Cross-Complaint
Here, Defendant seeks leave to file a cross-complaint against Plaintiff asserting claims for breach of contract, breach of the implied covenant of good faith and fair dealing, and negligence arising from the same transactions and occurrences alleged in Plaintiff’s complaint. (See Decl. of R. Jeremy Adamson in Supp. of Mot. for Leave to File Cross-Complaint (Adamson Decl.) at p. 2.)
Thus, the proposed cross-claims are related to the claims asserted by the Plaintiff the Complaint for damages and the Cross Complaint is compulsory.
Defendant’s Counsel represents that Defendant filed the Cross Complaint simultaneously with its answer on January 22, 2026, but the filing was rejected due to technical formatting defects. (See ibid.)
Defendant then attempted to refile the Cross Complaint on January 28, 2026, but it was rejected as untimely. (See ibid.)
The record reflects that Defendant acted in good faith and did not unreasonably delay in filing this motion seeking leave to file the Cross Complaint, about a week after the last rejection. (See ROA #27.)
Further, Plaintiff and proposed Cross-Defendant AP Parpro, Inc. has not filed an opposition or responded to the motion, and has thus waived any arguments against the motion. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 288 [failure to address or oppose issue in motion constitutes waiver of that issue]; see DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 566 [holding that failure to challenge contention in brief results in the concession on that issue].)
Accordingly, the court will grant the motion for leave to file cross- complaint.
Defendant shall give notice of this ruling.
6 Kittell vs. Motion for Leave to Amend DoorDash, Inc. Plaintiff James Stephen Kittell II’s Motion for Leave to File Second Amended Complaint is taken OFF CALENDAR pursuant to the Request for Dismissal of the entire action of all parties and all causes of action filed 30-2026- May 8, 2026 (ROA #35). 01537684
7 Biotronik, Inc. Motion for Leave to Amend vs. Letarte Plaintiff Biotronik, Inc.’s Amended Motion for Leave to File Amended Complaint is GRANTED. 30-2024- 01436213 Plaintiff Biotronik, Inc. is ORDERED to file and serve upon all named Defendants, within 30 days of this ruling, the First Amended Complaint attached as Exhibit 1 to the Declaration of Andrew J. Pieper in Support of Plaintiff Biotronik, Inc.’s Amended Motion for Leave to File Amended Complaint.