California cross-complaints: the one you must file with your answer, and the one you can file later

California divides cross-complaints into two kinds and treats them very differently. A related cause of action against the party who sued you is compulsory: leave it out and you cannot bring it later, in this case or any other. Everything else is permissive, and the deadline is generous.

The saving provision in CCP 426.50 is unusually forgiving, which is the main reason the compulsory rule rarely produces disasters — but it depends on good faith.

The compulsory rule

CCP 426.30(a):

Except as otherwise provided by statute, if a party against whom a complaint has been filed and served fails to allege in a cross-complaint any related cause of action which (at the time of serving his answer to the complaint) he has against the plaintiff, such party may not thereafter in any other action assert against the plaintiff the related cause of action not pleaded.

Three elements do the work.

"Related cause of action" is defined — CCP 426.10(c): one "which arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint."

The moment of measurement is service of the answer. A claim you did not yet have at that point is not caught.

And the bar runs to "any other action." This is not a rule about pleading tidily; it is a forfeiture.

Two exceptions — subdivision (b): the section does not apply where

(1) The court in which the action is pending does not have jurisdiction to render a personal judgment against the person who failed to plead the related cause of action. (2) The person who failed to plead the related cause of action did not file an answer to the complaint against him.

Exception (2) is worth pausing on. A defendant who never answered — because the case ended on a demurrer, or by dismissal, or in default — has not forfeited anything.

The escape hatch

CCP 426.50 is drafted to be used:

• 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, 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.

Four features:

The listed causes include "neglect." Ordinary carelessness is expressly covered.

"At any time during the course of the action." No outer deadline while the case is alive.

"Shall grant." On a finding of good faith, leave is mandatory, not discretionary.

And the section instructs its own construction — liberally, to avoid forfeiture.

What remains contested is good faith. That is the only real issue on such a motion, and it is where a party who sat on a known claim for tactical advantage is exposed.

The permissive cross-complaint

CCP 428.10 sets out what a cross-complaint may contain. A party against whom a cause of action has been asserted may file one setting forth either or both of:

(a) Any cause of action he has against any of the parties who filed the complaint or cross-complaint against him. [Nothing in this subdivision authorises a cross-complaint against the plaintiff in an eminent domain action commenced under Title 7.] (b) Any cause of action he has against a person alleged to be liable thereon, whether or not such person is already a party to the action, if the cause of action (1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause brought against him.

The asymmetry is deliberate.

Against the party who sued you — subdivision (a) — you may bring anything. There is no relatedness requirement at all. An unrelated debt, a different contract, a claim from years earlier: all available.

Against anyone else — subdivision (b) — the claim must be related, in one of the two stated ways. That is what allows you to bring in a new party who is not otherwise in the case.

The filing deadlines

CCP 428.50 sets three tiers:

(a) A party shall file a cross-complaint against any of the parties who filed the complaint or cross-complaint against him or her before or at the same time as the answer. (b) Any other cross-complaint may be filed at any time before the court has set a date for trial. (c) A party shall obtain leave of court to file any cross-complaint except one filed within the time specified in subdivision (a) or (b). Leave may be granted in the interest of justice at any time during the course of the action.

So:

Note that subdivision (a)'s deadline applies to any cross-complaint against the plaintiff — including an unrelated one permitted by CCP 428.10(a). The relatedness question governs forfeiture under CCP 426.30; the identity of the target governs timing under CCP 428.50.

Note also what closes the subdivision (b) window: the court setting a trial date, not the trial itself.

Serving it

CCP 428.60 splits by whether the target is already in the case:

• (1) If a party has not appeared in the action, a summons upon the cross-complaint shall be issued and served upon him in the same manner as upon commencement of an original action.
• (2) If a party has appeared, the cross-complaint shall be served upon his attorney, or upon the party if appearing without an attorney, in the manner provided for service of summons or under the ordinary service provisions beginning at CCP 1010.

Bringing in a new cross-defendant therefore means a summons, personal jurisdiction, and everything that follows from commencing an action against them — including their own right to move to quash under CCP 418.10.

The special answer

CCP 428.70 covers indemnity-style cross-complaints and gives the new party an unusual tool.

Definitions — subdivision (a): a "third-party plaintiff" is a person against whom a cause of action has been asserted, "who claims the right to recover all or part of any amounts for which he may be held liable on such cause of action from a third person," and who cross-complains accordingly. A "third-party defendant" is the person alleged to be liable to the third-party plaintiff if the third-party plaintiff is held liable.

Subdivision (b): in addition to their other rights, a third-party defendant "may, at the time he files his answer to the cross-complaint, file as a separate document a special answer alleging against the person who asserted the cause of action against the third-party plaintiff any defenses which the third-party plaintiff has to such cause of action." It is served on the third-party plaintiff and on the original claimant.

That lets a party dragged in on an indemnity theory defend the underlying claim directly, rather than depending on the defendant who brought them in to do it properly. The window is narrow — at the time of answering — and it must be a separate document.

How California compares

A short checklist

1. Before you answer, list every claim you have against the plaintiff arising from the same transaction or occurrence. Those are compulsory, and they must go in a cross-complaint filed with the answer.
2. Consider the unrelated ones too. CCP 428.10(a) lets you bring anything against the party who sued you — but CCP 428.50(a) still requires it by the time you answer.
3. For anyone else, the claim must be related — same transaction, or a claim to the property or controversy.
4. Watch for the trial date being set. That closes the permissive window under CCP 428.50(b).
5. If you realise you left something out, move under CCP 426.50 immediately. Leave is mandatory on good faith, and delay is what undermines good faith.
6. Issue a summons for any cross-defendant who has not appeared — it is a new action against them in every practical sense.
7. If you have been cross-complained against on an indemnity theory, consider the special answer — filed as a separate document, at the time you answer, and served on both the cross-complainant and the original claimant.
8. Check the two CCP 426.30(b) exceptions before assuming a claim was forfeited. No personal jurisdiction, or no answer filed, and the bar does not apply.

Where these sections live

• CCP 426.10 — Definitions; "related cause of action"
• CCP 426.30 — Compulsory cross-complaints
• CCP 426.50 — Leave to assert an omitted cause of action
• CCP 428.10 — What a cross-complaint may contain
• CCP 428.50 — When a cross-complaint may be filed
• CCP 428.60 — Service of a cross-complaint
• CCP 428.70 — Third-party practice; the special answer
• CCP 418.10 — Motion to quash, stay or dismiss
• CCP 430.10 — Grounds for demurrer

This page explains what the Code says. It isn't legal advice, and what counts as the same transaction or occurrence is decided under case law this site doesn't cover.