Opinion
A168940
11-21-2024
L. SCOTT FEILER, Plaintiff and Respondent, v. THE FRAME GROUP, INC. et al., Defendants and Appellants.
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. MSC2100682
Fujisaki, Acting P. J.
Defendants The Frame Group, Inc. (TFG) and Michael F. Frame (Frame) appeal from trial court orders denying (1) their motion under Code of Civil Procedure section 426.50 for leave to file a cross-complaint; and (2) their motions and ex parte applications for a continuance of trial. Defendants contend they provided ample good cause for a trial continuance due to the medical unavailability of their former trial counsel and the scheduling conflicts of their substitute counsel, and that the court's refusal to grant a continuance on these facts was an abuse of discretion. Defendants further contend there was insufficient evidence supporting the court's finding that they brought their motion for leave to file a cross-complaint in bad faith. We affirm.
Further unspecified statutory references are to the Code of Civil Procedure.
Factual and Procedural Background
In April 2021, plaintiff L. Scott Feiler filed the instant action against defendants for breach of contract, account stated, book account, promissory estoppel, and quantum meruit. The complaint alleges as follows. Feiler is the owner of an office building in Danville and defendants were tenants of a suite in the building (hereafter the premises). Under the written lease agreement, TFG was the lessee of the premises, and Frame was a guarantor of TFG's obligations. The lease term was set to expire at the end of June 2018, but the parties entered into an addendum to the lease agreement extending the lease term to June 28, 2020. Following the expiration of the lease term, Feiler made multiple requests to defendants to vacate the premises, but they remained and stopped paying rent.
A. Demurrer and Stay of Proceedings
In July 2021, the trial court overruled defendants' demurrer to the complaint but stayed the matter until November 30, 2021. After lifting the stay, the court gave defendants until December 2021 to file their answer and set the discovery cutoff for June 30, 2022. No trial date was set at this time.
B. Defendants' Answer
In December 2021, defendants filed their answer to the complaint. In addition to generally denying the complaint's allegations, defendants asserted "CROSS-ALLEGATIONS AND AVERMENTS" alleging that the premises suffered from defective plumbing, electricity, heating and air conditioning, and leaks in the ceiling, and that they reported these issues to Feiler numerous times between October 2015 and November 2020. Defendants further alleged that Feiler attempted to evict them in violation of urgency ordinances granting relief to commercial tenants impacted by the COVID-19 pandemic. Defendants asserted 11 affirmative defenses based on these allegations, including estoppel and waiver, unclean hands, failure to mitigate, justification, breach of rental agreement obligation/offset, breach of contract, fraud in the inducement, breach of warranty of quiet enjoyment, and breach of the implied covenant of good faith and fair dealing.
C. Motion for Leave to File Cross-Complaint and For Extension of Discovery Cutoff
On July 5, 2022, defendants moved for leave to file a cross-complaint against Feiler and to extend the time to complete discovery. In their proposed cross-complaint, defendants alleged, similar to the allegations in their answer, that Feiler failed to provide adequate plumbing, electricity, heating, and air conditioning in the premises, and that his attempts to evict them were in violation of county urgency ordinances. Defendants asserted cross-claims against Feiler for breach of the lease, breach of the right to quiet possession, fraud, constructive eviction, retaliatory eviction, and violation of county urgency ordinances.
In their motion to extend the discovery cutoff, defendants requested that the time to conduct discovery on both Feiler's complaint and their proposed cross-complaint remain open until September 1, 2022.
At a case management conference on July 6, 2022, the trial court (Hon. Barry Baskin) set a jury trial for February 14, 2023. Furthermore, notwithstanding defendants' pending motion to extend the discovery cutoff to September 1, 2022, Judge Baskin ordered that the discovery cutoff for "limited scope discovery" be extended to September 30, 2022. (Capitalization omitted.)
By "limited scope discovery," the trial court meant that defendants could propound no more than 35 combined discovery requests.
In August 2022, the trial court issued a tentative ruling denying defendants' motions. As to the motion for leave to file a cross-complaint, the court found that defendants failed to demonstrate they brought the motion in good faith because they did not explain, "even in the most general terms," why they did not meet the original deadline for filing a cross-complaint. The court found that defendants "knew about the claims to be asserted in the proposed cross-complaint when [they] filed [their] answer, because the facts supporting those claims are also alleged as affirmative defenses; in fact, the extensive cross-allegations and averments read more like a cross-complaint than an answer." The court acknowledged that the governing statute (section 426.50) liberally allows for the amendment of pleadings but remarked, "it is not that liberal. Some explanation must be provided. [Defendants] provide[] none."
The trial court also set forth a "pertinent chronology" of events relating to the motion, including Judge Baskin's extension of the discovery cutoff to September 30, 2022, as well as defendants' arguments in their reply brief seeking to have the discovery cutoff extended "a second time, from the end of September to 30 days before the February [14], 2023 trial date." The court also identified further "gaps" in defendants' briefing, including their failure to explain why they needed new discovery concerning the proposed crosscomplaint given the extensive overlap between the cross-claims and the allegations of the answer, and why Judge Baskin's extension of the discovery cutoff was insufficient. Given the history of the case as well as the "gaps" in defendants' papers, the court "reluctantly" concluded the motion "was not filed in good faith," and that "the intent of the motion was to evade Judge Baskin's definitive rulings on the pretrial discovery cutoff. The Court will not allow the filing of an untimely cross-complaint to serve an improper purpose."
Following the trial court's tentative ruling, the parties filed additional papers informing the court they had resolved their outstanding discovery disputes and agreed on a schedule for limited future discovery, rendering the motion to extend the discovery cutoff moot.
In September 2022, the trial court issued its final order denying the motion for leave to file a cross-complaint. The court found defendants were "aware of the grounds for [their] compulsory cross-complaint since April 20, 2021, three days after plaintiff's complaint was filed," but "made no attempt to file a cross-complaint until the issue of extending the discovery cutoff arose." The court further noted that "[w]ith the request for leave to file a cross-complaint coming on the heels of a desire to extend the discovery cutoff, and no explanation . . . for such a late request, the Court must reluctantly conclude" the motion "was not brought in good faith." The court also ruled the motion to extend the discovery cutoff was moot in light of the parties' stipulations.
D. The Parties' Joint Requests to Continue Trial
In December 2022, the parties submitted a joint letter to the trial court asking for a trial continuance. The court granted the request and set a new trial date for May 2023.
In April 2023, both sides again asked that trial be continued due to the need for defendants' counsel, Donald J. Putterman of Putterman Yu Wang LLP (Putterman Yu Wang), to undergo a medical procedure. The court set a new trial date for August 22, 2023.
E. Defendants' Requests to Continue Trial
The following events all occurred in 2023, unless otherwise specified.
1. June 6 Motion to Vacate/Continue Trial Date
In May, Putterman informed Feiler's counsel that his medical issues were more serious than expected and that he would be filing a notice of unavailability until July 1.
On June 6, defendants filed a noticed motion to vacate and continue the August 22 trial date for another "9-12 months." The motion was brought by Richard T. Bowles of Bowles and Verna LLP (Bowles &Verna), "Specially Appearing" for defendants. Defendants argued there was good cause for a continuance because they needed to replace their trial counsel, but Bowles would not agree to the substitution unless the August 22 trial date was moved, as he was "scheduled to be in a different trial from August 14, 2023, through September 1, 2023." In a supporting declaration, Bowles explained that he was engaged in a 10-day trial in Alameda County on August 11, a 10 to 15-day trial in Contra Costa County on August 14, and that he also had scheduled vacations "[b]etween now and August."
Defendants, through Bowles & Verna specially appearing, also filed an ex parte application to vacate/continue the trial date or alternatively to shorten time on their noticed motion.
Feiler opposed the motion, arguing that Bowles lacked standing to move for a continuance; that the request was part of a pattern of delay by defendants in this "simple case" for unpaid rent; and that defendants did not bring the motion in a timely manner, as they knew back in April 2023 of their need for new counsel.
Following Feiler's opposition, Putterman filed a joinder to defendants' motion.
The trial court denied the motion without prejudice on the ground that Bowles lacked standing to make the motion on behalf of defendants. The court made "no findings on whether or not cause to continue the trial would exist if counsel were to substitute into the case."
2. July 17 Ex Parte Application to Vacate/Continue Trial and Withdraw as Counsel
On July 17, attorney Dannielle Campbell from Putterman Yu Wang filed an ex parte application on behalf of defendants requesting a trial continuance and seeking an order permitting Putterman to withdraw as counsel of record. In the application, Campbell explained that "a conflict has arisen between [defendants] and counsel of record, the nature of which is confidential, and which has not been resolved as of the date of this application." Feiler opposed the application, again highlighting defendants' unreasonable delay in making the request, and lack of good cause to continue trial. The trial court summarily denied both requests.
3. August 8 Ex Parte Application to Vacate/Continue Trial Date
In late July, Bowles formally substituted in as counsel of record for defendants.
On August 8, defendants filed another ex parte application to vacate/continue the trial date, raising the same points as before. In his supporting declaration, Bowles explained he informed defendants in May that he "would be unable to substitute in unless the trial date is vacated or continued because I am not available on August 22, 2023 to try this case." Bowles explained he substituted in as counsel based on his understanding that a continuance would not be granted until new counsel was substituted in. Bowles then discussed his efforts to work with Feiler's counsel on a mutually agreeable trial date, noting his own unavailability in September.
Feiler opposed, maintaining defendants failed to show good cause and unreasonably delayed in bringing the motion.
The trial court denied the August 8 ex parte application. At the hearing, the court explained that Bowles's declaration lacked sufficient detail as to his claimed unavailability on August 22. When counsel for defendants informed the court that Bowles would be unavailable on several dates in August and September, the court responded that it required a declaration from Bowles to establish his unavailability. The court then asked counsel for their time estimates for trial. Feiler's counsel stated a non-jury trial would take one day, while defendants' counsel gave an estimate of five days for a jury trial. The court remarked, "Even if I were to grant a continuance, it would be a short continuance of one month, meaning September 18th. My calendar's wide open. I didn't hear anything that would interfere with that September 18th date."
4. August 10 Ex Parte Application
On August 10, defendants filed another ex parte application to continue trial, this time seeking a trial date either during the first three weeks of December or the last three weeks of January. The application was supported by a more detailed declaration from Bowles.
Bowles first explained he no longer had a direct conflict on August 22 because the two multi-day trials set for mid-August had been continued within the last 30 days. However, Bowles identified numerous other conflicts on and around the August 22 trial date. These included a bench trial that would run through August 11, followed by a period of post-trial briefing; a vacation the week of August 14 that had been planned since February; the fifth day of an arbitration on August 23; various "[c]ourt appearance[s]" on August 24, 28, 29, 31; various dates (August 21, 25, 29, 31) that had been offered for depositions, meetings, and/or mediations in other cases; a Workers' Compensation Appeals Board (WCAB) trial on August 30; a deposition on September 1; mediations on September 5, 6, and 7; a vacation from September 8 through 17; a pre-deposition client meeting on September 18 and client deposition on September 19; an arbitration status conference on September 25; depositions on September 25 and 26; a settlement conference on September 28; a trial beginning October 3; an arbitration on October 16; and a vacation during the week of October 23.
Feiler opposed the application, reiterating many of his prior arguments and contending that Bowles's most recent declaration was insufficient because he provided no evidence that the matters could not be rescheduled or covered by another attorney at his firm.
The trial court once again denied defendants' request to continue trial, stating "[t]he fact that counsel has scheduled appearances is not good cause." The court reiterated its offer "to continue the trial to September 19 to give counsel an opportunity to prepare" and "to work with counsel on scheduling issues."
5. Bowles's Withdrawal and Defendants' August 21 Request for Continuance
On August 14, Bowles withdrew as counsel of record with defendants' consent. Defendants filed a substitution of attorney form replacing Bowles with defendant Frame (a non-attorney) as counsel of record.
On August 21, the trial court held a pretrial issue conference. Frame attended the conference unrepresented by counsel and orally requested a 90-day continuance to secure new counsel for defendants. In denying the request, the court emphasized it had offered defendants a reasonable continuance of four weeks to give Bowles time to prepare for trial but the court "was never taken up on its offer" before defendants "voluntarily" let Bowles go. The court further noted that throughout the numerous prior continuance requests, Bowles's unavailability had not been adequately demonstrated, as he originally said he had a trial, but "[w]hen pressed upon his declaration, which was bereft of any reason why the Court should continue the matter, it was revealed to this Court that he did not have a trial. That trial went away. So his original reason for wanting to continue the trial no longer existed, meaning he didn't have a trial. If I remember correctly, he had a one-day arbitration. I think it was scheduled for Tuesday, tomorrow, this week, and the Court would have accommodated that. The Court could have had the issue conference today, went dark tomorrow, picked the jury on Wednesday. A one-day arbitration is not good cause to continue the case." The court further remarked that while Bowles cited various other conflicts during August and September, "he is an active law firm. I can't find a week or a month in which he has no court dates set. That's not practical, and that's not good cause." The court concluded, "So there really wasn't any good cause to continue. [¶] He substituted out. You've let him substitute out. This is not a grounds for the Court to continue. If it were, then individuals that wanted continuances would just let their counsel substitute out, two, three, four days before the trial. [¶] So with that, I'm prepared to go forward."
As the trial court noted, Frame could not represent the corporate defendant, TFG. (See Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724, 727.)
Frame told the trial court he did not come prepared to proceed without an attorney and would not participate in the trial. The court informed Frame that "[b]y leaving, you are waiving your right to a jury trial" and that the court would proceed with a bench trial.
On August 22, the court conducted a bench trial in defendants' absence and entered judgment in favor of Feiler for $96,201.16. This appeal followed.
Discussion
A. Trial Continuance
Trial continuances are "disfavored" and may be granted "only on an affirmative showing of good cause." (Cal. Rules of Court, rule 3.1332(c).) The party requesting a continuance must do so "by a noticed motion or an ex parte application . . . with supporting declarations . . . as soon as reasonably practical once the necessity for the continuance is discovered." (Cal. Rules of Court, rule 3.1332(b).)
"Circumstances that may indicate good cause include: . . . [¶] [t]he unavailability of trial counsel because of death, illness, or other excusable circumstances"; "[t]he substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice"; and "[a] significant, unanticipated change in the status of the case as a result of which the case is not ready for trial." (Cal. Rules of Court, rule 3.1332(c)(3), (4), (7).) "In ruling on a motion or application for continuance, the court must consider all the facts and circumstances that are relevant to the determination," which include such factors as the proximity of the trial date; whether there were previous trial continuances; the length of the requested continuance; and the prejudice that parties or witnesses would suffer as a result of the continuance. (Cal. Rules of Court, rule 3.1332(d).)
"The decision to grant or deny a continuance is committed to the sound discretion of the trial court," and the "exercise of that discretion will be upheld if it is based on a reasoned judgment and complies with legal principles and policies appropriate to the case before the court." (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 984-985.)"' "Abuse of discretion is never presumed. It must be affirmatively established. A reviewing court is not authorized to revise the lower court's judgment even if it should be of the opinion that it would have made a different award had the matter been submitted to its judgment in the first instance, in the absence of a clear abuse of discretion."' [Citation.] 'The discretion was the trial judge's, not ours; and we can only interfere if we find that under all the evidence, viewed most favorably in support of the trial court's action, no judge could reasonably have made the order that he [or she] did.'" (Smith v. Smith (1969) 1 Cal.App.3d 952, 958 (Smith).)
Here, the trial court provided sound reasons for denying defendants' multiple motions and ex parte applications to continue trial, and we cannot say no judge could reasonably have denied the requests to continue trial under the circumstances of this case. Relevant factors supporting the court's decision include: the close proximity of the continuance requests to the August 22 trial date; the fact that the court had granted two prior trial continuances; and the substantial amount of time that defendants sought to postpone trial despite the apparently uncomplicated nature of the case. (See Cal. Rules of Court, rule 3.1332(d)(1), (2), (3).) True, Putterman's medical inability and Bowles's late substitution into the case were facts supporting good cause (see Cal. Rules of Court, rule 3.1332(c)(3), (4)), but the trial court offered a four-week continuance in light of these circumstances. We cannot say four weeks was unreasonably short, as defendants did not dispute the trial in this case would be a relatively straightforward matter involving only a handful of witnesses and lasting no more than five days.
Still, defendants accuse the trial court of placing numerous procedural "roadblocks and hurdles" on them before ultimately denying their continuance requests less than two weeks before the scheduled trial date. We fail to see the case in that light. With respect to the June 6 motion to vacate and continue the trial, the court reasonably concluded that Bowles lacked standing to bring the motion on defendants' behalf while Putterman remained their counsel of record. (See Epley v. Califro (1958) 49 Cal.2d 849, 854 [attorney of record has exclusive right to appear in court for client].)
With respect to the July 17 ex parte application, defendants argue the trial court "failed to identify what, if any, insufficiencies supported its denial" and "did not analyze [defendants'] request on its merits, but rather simply instructed . . . it would not entertain this request until new counsel substituted in." But defendants cite no authority requiring the court to explain its ruling, and the court's written order denying the July 17 application did not condition the court's consideration of the request on Bowles's substitution. To the extent defendants base this claim of error on remarks made at the hearing on the July 17 application, their failure to provide a reporter's transcript of the hearing precludes a finding of error. (Estate of Fain (1999) 75 Cal.App.4th 973, 992.) Moreover, defendants also failed to include Feiler's brief in opposition to the July 17 application in the record on appeal, and we may reasonably assume the court was persuaded by one or more of the arguments set forth in the opposition. (See Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502 [failure to provide adequate record on issue generally requires that issue to be resolved against appellant].)
We may also assume the trial court was reasonably concerned about Putterman's request to withdraw so close to trial based on an unspecified "conflict" between him and defendants. (See Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1134 [trial court need not accept general claim of conflict and rubber stamp counsel's request to withdraw].)
With respect to the August 8 ex parte application, defendants argue the court "baselessly denied" their request for the "sole (sham) reason" that the Bowles declaration was inadequate. We caution counsel that intemperate accusations like this have no proper place in the appellate briefs. The assertion, moreover, is unfounded and lacks merit. There can be no dispute that Bowles's declaration stated only in a conclusory fashion that he was "not available on August 22, 2023 to try this case" without providing any specific facts or details. The trial court was right to insist on more than a barebones statement of Bowles's unavailability (see United Parcel Service Wage &Hour Cases (2010) 190 Cal.App.4th 1001, 1018 [declaration must recite evidentiary facts, not ultimate conclusions]) in order to determine whether his claimed scheduling conflicts constituted excusable circumstances that would justify a trial continuance. (Cal. Rules of Court, rule 3.1332(c)(3).)
Defendants also argue it was unfair for the trial court to wait until two weeks before the August 22 trial date to communicate it did not consider Bowles's scheduling conflicts as good cause for a continuance. But the timing of this ruling is attributable to defendants, not the court, as their August 8 application was the first time they submitted a supporting declaration with details regarding counsel's claimed unavailability. Moreover, and in any event, the court then offered to continue the trial date for several weeks into mid-September. We perceive no unfairness or arbitrariness on the court's part.
Defendants argue the trial court made the same error as the lower court in Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389 (Oliveros) by disregarding counsel's scheduling issues as good cause for a continuance. In Oliveros, the defendant's counsel (Peterson) requested a continuance a week before trial because he "was unexpectedly engaged in trial in another courtroom in the same courthouse in which the trial court insisted that Mr. Peterson try this case." (Oliveros, at p. 1396.) The trial court denied the request, suggesting that another lawyer from Peterson's office try the case. (Id. at p. 1393.) The Court of Appeal reversed, concluding the trial court focused too narrowly on the issue of judicial efficiency without considering the strong public policy favoring disposition on the merits. (Ibid.) As the Oliveros court observed, the denial of the continuance left the defendant without counsel in "a complicated medical malpractice case in which the parties intended to present the testimony of 43 witnesses, 18 of whom were designated as experts, and in which substantial damages were at stake. Mr. Peterson had invested over 250 hours in preparing this case for trial" and "represented to the court that none of the lawyers in his office who had sufficient litigation experience to try this case were available to do so on the date set for trial." (Id. at p. 1397.)
We do not find the circumstances here to "closely parallel" those in Oliveros, as defendants insist. To begin with, Bowles was not engaged in another trial on August 22. (See Oliveros, supra, 120 Cal.App.4th at p. 1399 [noting relevant factor of whether trial counsel is engaged in another trial]; see also Cal. Rules of Court, 3.1332(d)(8).) The only "trials" on Bowles's calendar (other than the mid-August trials that were eventually continued) were the August 23 arbitration, the WCAB trial on August 30, and the October 3 trial. Although Bowles was unavailable on September 18 and 19 (not for trials but for a predeposition meeting and deposition), he identified no conflicts on September 20, 21, 22, 27, and 29, and he identified the week of October 9 as "relatively open." Meanwhile, the trial court offered to accommodate Bowles's schedule by having the court go dark on days in which he had a direct conflict. In short, unlike Oliveros, this case did not involve a situation where the court's refusal to continue trial meant that counsel would necessarily be engaged in two trials at the same time.
We accept that Bowles's congested schedule in August and September presented challenges for trial preparation. But we cannot say the trial court clearly abused its discretion in refusing to accept this as grounds for a continuance beyond four weeks. Many of the scheduled matters set forth in Bowles's declaration reflected merely potential conflicts (e.g., dates offered for depositions and meetings in other cases), and it was not made clear whether those dates were ultimately confirmed as proposed. Other scheduled matters were listed as nonspecific court appearances with no details as to the nature of the appearance or even a general assertion that the appearances could not be made by another lawyer at Bowles &Verna. (Indeed, Bowles described only the August 24 court appearances as one "that I need to take.") The record also reflects that after the two mid-August trials on Bowles's calendar were continued, he suddenly took the position that he was still unavailable the week of August 14 due to a vacation that had been planned since February. Assuming Bowles had intended to forgo that vacation before the other trials were continued, he offered no explanation as to why he could not have done likewise in order to use the week of August 14 to prepare for the August 22 trial in this matter. All the while, the trial court made clear that its September calendar was "wide open" and that it was willing to work with counsel to accommodate his schedule. On this record, the court reasonably concluded that Bowles's schedule did not present such an intractable conflict as to justify continuing the trial date for many months as Bowles and defendants requested.
Critically, Oliveros is also factually distinguishable from the instant matter as involving a complex medical malpractice case with many witnesses, including experts, and substantial damages claims. (Oliveras, supra, 120 Cal.App.4th at p. 1397.) Here, the trial involved a relatively modest matter of unpaid rent, with only a handful of witnesses. And unlike the attorney in Oliveros, who represented that none of the lawyers in his office with sufficient litigation experience was available to try the case on the date set for trial, defendants offered no similar representation about whether there were other attorneys at Bowles &Verna who had sufficient litigation experience to try this case with four weeks' preparation time. Although defendants quote Oliveros for the proposition that "lawyers are not fungible," Oliveros's salient point was that one cannot expect any licensed attorney from a large firm to "come to court without any preparation and try a complicated medical malpractice case." (Id. at p. 1397, italics added.) Again, the instant action did not appear to be a complicated case, and the court offered a four-week continuance for the purposes of trial preparation.
Nor can it be said that the trial court's refusal to grant a trial continuance beyond four weeks "was tantamount to a terminating sanction." (Oliveros, supra, 120 Cal.App.4th at p. 1399.) As discussed, Bowles had no engagements on August 22 that would have necessarily prevented his appearance on that day, and he had numerous available days in September around the time of the court's proposed continued trial date. The record contains no indication that the court knew or could reasonably expect that as a result of its refusal to grant other than a four-week continuance, Bowles would withdraw as counsel of record with the consent of defendants. As such, this is not a case where the court knew its refusal to continue trial would pose a clash with the public policy favoring disposition on the merits. (See Oliveros, supra, 120 Cal.App.4th at p. 1393.) To the contrary, it appears the court intended to go forward with a trial on the merits in either August or September, and was surprised by defendants' unilateral decision to let their counsel withdraw despite his apparent availability for a trial on the dates specified by the court.
An attorney may be changed either upon the consent of the client and the attorney, or on the order of the trial court, or on application of either the client or the attorney. (§ 284.) Had defendants refused to consent to Bowles's withdrawal, and had Bowles then applied for an order permitting him to withdraw, the trial court would have had discretion to deny the motion if it were to find that Bowles's withdrawal on the eve of trial would work an injustice to his clients. (See Mandell v. Superior Court (1977) 67 Cal.App.3d 1, 4.)
In sum, we conclude defendants fail to demonstrate that the trial court's denial of their requests for a trial continuance constituted a "clear" abuse of discretion. (Smith, supra, 1 Cal.App.3d at p. 958.)
B. Motion for Leave to File Cross-Complaint
Generally, a party seeking to bring a cross-action must file the crosscomplaint "at the same time as the answer to the complaint." (§ 428.50, subd. (a).) However, a party who fails to do so due to oversight, inadvertence, mistake, or neglect may, "at any time during the course of the action" apply for leave to file a cross-complaint, and the court "shall grant" the motion upon such terms as may be just so long as the party requesting leave "acted in good faith." (§ 426.50.)
"A policy of liberal construction of section 426.50 to avoid forfeiture of causes of action is imposed on the trial court," and thus, a motion under section 426.50 "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
Though defendants claim the trial court "unfairly denied" them "the opportunity to present a defense" and "improperly proceeded with a bench trial" in their absence, they offer no legal argument or authority supporting such claims independent from those pertaining to the court's denials of their requests to continue the trial date and to file a cross-complaint. grounds to deny the motion unless accompanied by bad faith." (Silver Orgs. v. Frank (1990) 217 Cal.App.3d 94, 98-99 (Silver Orgs.).)
Bad faith means the opposite of good faith. Not only does the term contemplate conduct implying or involving fraud, or a design to mislead another, but it also includes conduct reflecting"' "a neglect or refusal to fulfill some duty . . ., 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 dishonest purpose or moral obliquity." '" (Silver Orgs., supra, 217 Cal.App.3d at p. 100.) "[W]hat constitutes 'good faith'-or lack of it-under Code of Civil Procedure section 426.50 must be determined in light of and in conformity with the liberality conferred upon the trial courts by the section and by prior law." (Foot's Transfer &Storage Co. v. Superior Court (1980) 114 Cal.App.3d 897, 902 (Foot's Transfer).) Thus, "a strong showing of bad faith" is required "to support a denial of the right to file a cross-complaint under this section." (Ibid.)
Review of a trial court's denial of a section 426.50 motion on the ground of bad faith requires that we view the evidence in the light most favorable to the judgment and accept as true all evidence tending to support the judgment, including all facts that reasonably can be deduced from the evidence. (Silver Orgs., supra, 217 Cal.App.3d at p. 99; Mealy v. B-Mobile, Inc. (2011) 195 Cal.App.4th 1218, 1223.) Our power" 'begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court.'" (Silver Orgs., supra, 217 Cal.App.3d at p. 100, italics omitted.)
Here, the following evidence was before the trial court: defendants were aware of the grounds for their proposed cross-complaint since the inception of the lawsuit in April 2021; they waited well over a year, and after the expiration of the original discovery cutoff on September 1, 2022, to seek leave to file a cross-complaint; they provided no explanation whatsoever for this delay; and they continued to seek extensions of the discovery cutoff even though Judge Baskin had extended the deadline for limited discovery to September 30, 2022, which was a full month beyond what they asked for in their original July 5, 2022 motion for leave to file a cross-complaint. Based on this record, the court found that defendants were improperly trying to evade Judge Baskin's September 2022 discovery cutoff, and it denied their motion to file a cross-complaint. In other words, the court determined that defendants acted not with a good faith intent to enforce cross-claims they had long known about, but to needlessly extend discovery and delay the litigation. Because these findings are supported by substantial evidence and facts reasonably deduced from the record, we must affirm. (Silver Orgs., supra, 217 Cal.App.3d at pp. 99-100.)
Notably, defendants do not dispute they were aware of the grounds for their proposed cross-complaint since the start of this lawsuit in April 2021. Not only did their counsel write to Feiler's counsel in April 2021 that Feiler should expect a cross-complaint, but the similarity of the allegations of both the answer and proposed cross-complaint indicates defendants were aware of the allegedly defective conditions of the premises long before Feiler filed this action. Thus, defendants had every reason to file their cross-complaint in December 2021 when their answer was due. (See § 428.50, subd. (a).)
Likewise, defendants do not dispute that they never explained why they waited until the expiration of the original discovery cutoff to seek leave to file a cross-complaint. Nor did they ever provide evidence showing their delay was attributable to oversight, inadvertence, neglect, or mistake. Without providing at least some explanation for their dilatory conduct, defendants failed to meet their burden of showing they were acting in good faith. On this record, the trial court acted well within its discretion to deny leave to file the cross-complaint. (Foot's Transfer, supra, 114 Cal.App.3d at p. 901 [section 426.50 gives courts a" 'modicum of discretion'" to deny a motion for leave where the movant fails to act in good faith].)
In resisting this conclusion, defendants contend the perceived gaps in their motion papers were not valid reasons to deny the motion because the gaps did not rise to the level of bad faith-e.g., actual or constructive fraud or a sinister motive, as opposed to merely bad judgment or negligence. We disagree. Viewing the evidence in the light most favorable to the judgment, as the law requires, we conclude defendants' bad faith could reasonably be deduced from the following circumstances. First, because defendants offered no explanation or evidence for their delay, there was no basis in the record from which to infer that the delay was attributable to mere inadvertence, oversight, mistake, or neglect. Second, the evidence of the timing of the motion (more than a year after they filed their answer and after the expiration of the initial discovery cutoff), combined with defendants' complete failure to explain the delay and their continuing efforts to extend the discovery cutoff, supported the trial court's finding that defendants acted with the intent "to evade Judge Baskin's definitive rulings on the pretrial discovery cutoff." Even if the record could have supported other inferences, we cannot say the trial court's decision was unsupported by substantial evidence or erroneous as a matter of law. (See Gherman v. Colburn (1977) 72 Cal.App.3d 544, 559-560 [affirming implied finding of bad faith where defendants' belated attempt to file cross-complaint "was merely a tactical, strategic maneuver to deprive plaintiffs of a right to a jury trial"].)
It is perhaps a closer question whether a "strong" showing of bad faith was made in this case. (Foot's Transfer, supra, 114 Cal.App.3d at p. 902.) Ultimately, however, we see no basis for reversal. The requirement of a strong showing of bad faith flows from the principle that courts should liberally allow for the amendment of pleadings so as to avoid the forfeiture of causes of action. (See Silver Orgs., supra, 217 Cal.App.3d at pp. 98-99.) Here, however, the denial of leave to file a cross-complaint did not threaten to cause the complete forfeiture of defendants' proposed claims for relief. As indicated, defendants' answer contains allegations that substantially mirror those of the proposed cross-complaint. Consequently, the denial of leave does not prevent defendants from presenting evidence of and obtaining some measure of relief for the allegedly defective conditions of the premises and Feiler's alleged violations of urgency ordinances, as those matters remain relevant to their affirmative defenses to Feiler's claims for unpaid rent. Under these circumstances, and in light of the policies underlying section 426.50, we conclude the showing of bad faith in this case was sufficient.
Disposition
The judgment is affirmed. Feiler is entitled to his costs on appeal.
WE CONCUR: Petrou, J., Rodriguez, J.