| Case | County / Judge | Motion | Ruling | Indexed | Hearing |
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Motion for leave to file cross-complaint
At issue is a motion by Defendants Tina Seng and Brian Seng for leave to file crosscomplaint. According to the allegations of the original and still operative complaint, Plaintiffs reside in and rent a residence (the Premises) in San Jose that is owned by Defendants. (Complaint, ¶¶ 5, 9, 10.) Plaintiffs have occupied the Premises since October 2013. The complaint alleges Defendants began extensive remodeling work on the Premises in September 2023 to convert the garage to an Accessory Dwelling Unit.
Plaintiffs allege that the Premises became a “perpetual construction site, creating an almost constant nuisance for [them].” (Id., ¶¶ 18-19.) That nuisance included, among other things, almost daily trespass into Plaintiffs’ living space by construction workers and Defendants’ use of Plaintiffs’ electricity and water for the remodeling work. (Id., ¶¶ 20-22.) Plaintiffs further allege Defendants forced Plaintiffs to execute a new lease under duress, which drastically changed the scope of the existing agreement between the parties by removing from the lease areas of the Premises that had been seized by Defendants. (Id., ¶ 23.)
Plaintiffs filed the complaint in August 2024, alleging causes of action for: (1) breach of implied warranty; (2) breach of covenant of quiet enjoyment; (3) breach of covenant of good faith and fair dealing; (4) private nuisance; (5) negligence; (6) breach of contract; (7) violation of San Jose Municipal Code § 17.20.900, et seq.; and (8) false imprisonment. Trial is set for October 5, 2026.
Defendants move for leave to file what they contend is a compulsory cross-complaint. The proposed cross-complaint seeks to allege causes of action for breach of contract and negligence. It is based on allegations that Plaintiffs caused damage to the Premises beyond ordinary wear and tear.
A party who fails to plead a compulsory cause of action may apply to the court for leave to file a cross-complaint at any time during the course of the action. (Code Civ. Proc., § 426.50.) The court shall grant such leave if the party acted in good faith. (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 959.) Section 426.50 “shall be liberally construed to avoid forfeiture of causes of action.” (Code Civ. Proc., § 426.50
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“Factors such as oversight, inadvertence, mistake, or neglect are insufficient grounds to deny the motion unless accompanied by bad faith.” (Silver Orgs. v. Frank (1990) 217 Cal.App.3d 94, 99 (Silver Orgs.).) In this context, “bad faith” has been held to mean “[a] dishonest purpose, moral obliquity, sinister motive, furtive design or ill will.” (Id. at p. 100.) There must be “substantial evidence” of bad faith in order for a court to deny leave to file a compulsory cross-complaint; this requires the presentation by the non-moving party of substantial evidence of “actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake . . ., but by some interested or sinister motive[,] . . . not simply bad judgment or negligence, but rather . . . the conscious doing of a wrong because of a dishonest purpose or moral obliquity; . . it contemplates a state of mind affirmatively operating with furtive design or ill will.” (Ibid., internal citation omitted.)
Delay, without more, does not amount to bad faith. (Silver Orgs., at p. 101.)
Here, Plaintiffs that Defendants’ motion is made in bad faith because they were made aware of the purported damages to the Premises in November 2024, shortly after the answer was filed, but delayed filing their motion for leave until nearly a year later. But Plaintiffs offer no evidence suggesting that Defendants were aware of such damages at that time. Defendants’ explanation for not filing the cross-complaint earlier is that when their counsel filed their answer to the Complaint, he was unaware of the basis to file such a pleading. (See Declaration of Gary W. Sullivan in Support of Motion for Leave to File Cross-Complaint, ¶ 3.) That delay, without more, is insufficient evidence of bad faith. Plaintiffs’ insistence that Defendants’ intentionally delayed filing the cross-complaint is speculative and not supported by any evidence. The court finds no bad faith on this record.
The motion for leave to file the cross-complaint is GRANTED. Defendants are ordered to file the proposed cross-complaint no later than May 20, 2026.
The court will prepare the order.
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