Tentative Ruling: Jose Cruz vs Smart & Final Stores LLC et al
Case Number
24CV06395
Case Type
Hearing Date / Time
Fri, 03/20/2026 - 10:00
Nature of Proceedings
CMC; Motion: Leave
Tentative Ruling
On November 14, 2024, plaintiff Jose Cruz filed his original complaint in this action against defendants Smart & Final Stores, LLC (Smart & Final), Kirkley Corporation (Kirkley), Francisco Alvarado, and Portermatt Electric, Inc. (Portermatt). The complaint asserts one cause of action for negligence/ premises liability arising out of an accident in which a light fixture fell from the ceiling a Smart & Final store causing injury.
On March 12, 2025, Kirkley filed its answer to the complaint, generally denying the allegations thereof and asserting 22 affirmative defenses. On March 27, Smart & Final filed its answer to the complaint, generally denying the allegations thereof and asserting 38 affirmative defenses. Also on March 27, Smart & Final filed a cross-complaint for indemnity, contribution, and declaratory relief against fictitiously named cross-defendants Roes 1 through 25. On May 16, Portermatt filed its answer to plaintiff’s complaint, generally denying the allegations thereof and asserting 48 affirmative defenses. On July 11, Alvarado filed his answer to the complaint, generally denying the allegations thereof and asserting 21 affirmative defenses.
On November 17, 2025, Kirkley and Alvarado filed this motion for leave to file a cross-complaint against Portermatt for indemnity, declaratory relief, and equitable apportionment. Counsel for Kirkley and Alvarado states that the answers were filed in this action without an accompanying cross-complaint by an attorney who is no longer with the firm, and that tenders had been sent to Portermatt and its counsel without reply. (Golding decl., ¶¶ 5-7.)
On January 12, 2026, Smart & Final filed amendments to its cross-complaint identifying “Roe 1” as Kirkley and “Roe 2” as Portermatt. On February 6, Kirkley filed its answer to Smart & Final’s cross-complaint, generally denying the allegations thereof and asserting nine affirmative defenses. On February 13, Portermatt filed its answer to Smart & Final’s cross-complaint, generally denying the allegations thereof and asserting 48 affirmative defenses.
On March 9, 2026, Portermatt filed its opposition to Kirkley and Alvarado’s motion for leave to file a cross-complaint. Portermatt argues that the cross-complaint is untimely, would cause prejudice to Portermatt, and is not now requested in good faith.
“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.” (Code Civ. Proc., § 426.50.) The court has discretion to deny a motion for leave if the party does not act in good faith. (Foot’s Transfer & Storage Co. v. Superior Court (1980) 114 Cal.App.3d 897, 901.)
Here, the cross-complaint is one for indemnity. There is already one cross-complaint for indemnity and all of the parties and all of the same issues are involved in plaintiff’s complaint and in the proposed cross-complaint. No prejudice or bad faith is shown and the court is satisfied with Kirkley and Alvarado’s explanation of the timing of their motion. Kirkley and Alvarado’s motion for leave to file a cross-complaint is granted. The cross-complaint shall be filed and served, in substantially the same form as attached to the motion, on or before April 3, 2026.