State Court Third-Party Complaint (Impleader) — Cross-Complaint Against Third Party

DEFENDANT'S CROSS-COMPLAINT AGAINST [THIRD PARTY] — CALIFORNIA SUPERIOR COURT

TABLE OF CONTENTS

1. Caption
2. Introduction & Governing Authority
3. Parties
4. Jurisdiction & Venue
5. Summary of the Underlying Action
6. General Factual Allegations
7. First Cause of Action — Equitable & Contractual Indemnity
8. Second Cause of Action — Contribution
9. Third Cause of Action — Equitable Subrogation
10. Fourth Cause of Action — Declaratory Relief (Duty to Defend & Indemnify)
11. Fifth Cause of Action — Express Indemnity / "Liable Over"
12. Prayer for Relief
13. Demand for Jury Trial
14. Signature Block
15. Verification
16. Issuance & Service of Summons on the New Cross-Defendant
17. Proof of Service
18. California Practice Notes
19. Sources & References

1. CAPTION

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF [____________]

CASE NO.: [____________]

[DEFENDANT NAME]'S CROSS-COMPLAINT AGAINST [THIRD-PARTY / CROSS-DEFENDANT NAME] FOR:

1. Equitable & Contractual Indemnity
2. Contribution
3. Equitable Subrogation
4. Declaratory Relief
5. Express Indemnity / "Liable Over"

DEMAND FOR JURY TRIAL: ☐ Yes ☐ No

2. INTRODUCTION & GOVERNING AUTHORITY

Cross-Complainant [DEFENDANT / CROSS-COMPLAINANT NAME] ("Cross-Complainant" or "Third-Party Plaintiff"), a defendant in the above-captioned action, files this Cross-Complaint against [THIRD-PARTY / CROSS-DEFENDANT NAME] ("Cross-Defendant" or "Third-Party Defendant"), a person not previously a party to this action, pursuant to California Code of Civil Procedure sections 428.10(b), 428.20, and 428.70, and alleges as follows:

2.1. California's impleader device is the cross-complaint. California has no separate "third-party complaint." Under Cal. Code Civ. Proc. § 428.10(b), a party against whom a cause of action has been asserted may file a cross-complaint stating "[a]ny 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 the cross-complainant, or (2) asserts a claim, right, or interest in the property or controversy that is the subject of the cause brought against the cross-complainant.

2.2. "Third-party plaintiff" / "third-party defendant." Cal. Code Civ. Proc. § 428.70(a) defines a "third-party plaintiff" as 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 files a cross-complaint stating such claim as a cause of action against the third person," and defines a "third-party defendant" as the person alleged to be liable to the third-party plaintiff if the third-party plaintiff is held liable on the plaintiff's claim. This Cross-Complaint is the "liable over" / impleader pleading those definitions describe.

2.3. Joinder of the new party. Cal. Code Civ. Proc. § 428.20 permits Cross-Complainant to join any person as a cross-defendant, whether or not already a party, where joinder would be permitted by the statutes governing joinder of parties.

2.4. Timing (§ 428.50). A cross-complaint against a party who filed the complaint must be filed before or at the same time as the answer; any other cross-complaint — including one against a new party — may be filed at any time before the court has set a date for trial. Outside those windows, leave of court is required and "[l]eave may be granted in the interest of justice at any time during the course of the action." This Cross-Complaint is filed [together with Cross-Complainant's Answer / before a trial date has been set / by leave of Court granted on [__/__/____]].

2.5. Separate document (§ 428.40). This Cross-Complaint is filed as a separate document from any answer.

3. PARTIES

3.1. Cross-Complainant [DEFENDANT / CROSS-COMPLAINANT NAME] is, and at all relevant times was, a [corporation / limited liability company / individual] [organized under the laws of [State] / residing in [County], California], and is a defendant in this action.

3.2. Cross-Defendant [THIRD-PARTY / CROSS-DEFENDANT NAME] is, and at all relevant times was, a [corporation / limited liability company / individual] [organized under the laws of [State] / residing in [County, State]]. Cross-Defendant was not a party to this action before the filing of this Cross-Complaint and is brought in pursuant to Cal. Code Civ. Proc. §§ 428.10(b) and 428.20.

3.3. The true names and capacities of Cross-Defendants sued as ROES 1 through 10 are unknown to Cross-Complainant, who will amend this Cross-Complaint to allege their true names and capacities when ascertained. Cross-Complainant is informed and believes that each fictitiously named Cross-Defendant is responsible in some manner for the matters alleged.

3.4. Cross-Complainant is informed and believes, and on that basis alleges, that at all relevant times each Cross-Defendant was the agent, employee, partner, joint venturer, alter ego, or representative of the remaining Cross-Defendants and acted within the scope of that relationship.

4. JURISDICTION & VENUE

4.1. This Court has subject-matter jurisdiction because the amount in controversy exceeds $35,000, exclusive of interest and costs, and this matter is therefore an Unlimited Civil case.

4.2. The Court has personal jurisdiction over Cross-Defendant because Cross-Defendant resides, is domiciled, or transacts business in California, and/or the conduct giving rise to the indemnity, contribution, and "liable over" claims occurred in or was directed at California, establishing sufficient minimum contacts.

4.3. Venue is proper in this County because the obligations and liabilities alleged were incurred and/or were to be performed in this County, and/or Cross-Defendant resides or does business here, and because this Cross-Complaint is ancillary to the pending action venued in this Court.

5. SUMMARY OF THE UNDERLYING ACTION

5.1. On or about [__/__/____], Plaintiff [PLAINTIFF NAME] filed a Complaint against Cross-Complainant alleging [describe the plaintiff's claims — e.g., breach of contract, negligence, property damage, personal injury] and seeking damages of $[____________] (the "Underlying Action").

5.2. Cross-Complainant has answered the Complaint and denies all liability to Plaintiff and denies that it engaged in any of the wrongful conduct alleged.

5.3. To the extent Cross-Complainant is found liable to Plaintiff on any of the claims in the Underlying Action — which liability is expressly denied — such liability arises in whole or in part from the acts, omissions, fault, or contractual obligations of Cross-Defendant [THIRD-PARTY / CROSS-DEFENDANT NAME], who is or may be liable to Cross-Complainant for all or part of Plaintiff's claim.

6. GENERAL FACTUAL ALLEGATIONS

6.1. On or about [__/__/____], Cross-Complainant and Cross-Defendant entered into [describe the agreement, transaction, project, or relationship — e.g., a subcontract, supply agreement, lease, or course of dealing] (the "Agreement"). A true and correct copy is attached as Exhibit A and incorporated by reference.

6.2. Under the Agreement, Cross-Defendant agreed to [describe the duties Cross-Defendant undertook — e.g., perform the work, supply conforming goods, maintain insurance, defend and indemnify Cross-Complainant].

6.3. The damages, losses, or conditions of which Plaintiff complains in the Underlying Action were caused, in whole or in part, by Cross-Defendant's [describe the acts, omissions, defective work, breach, or other fault].

6.4. Cross-Complainant performed all obligations required of it, except those it was excused or prevented from performing.

6.5. [Insert additional numbered factual allegations as needed — dates, communications, the relationship between Cross-Defendant's conduct and the harm alleged by Plaintiff, tenders of defense, and demands.]

6.6. As a direct and proximate result of the conduct alleged, if Cross-Complainant is held liable to Plaintiff, Cross-Complainant will be damaged in the amount of any such judgment, together with its costs and attorney's fees of defense.

7. FIRST CAUSE OF ACTION — EQUITABLE & CONTRACTUAL INDEMNITY

(By Cross-Complainant Against Cross-Defendant [THIRD-PARTY NAME])

7.1. Cross-Complainant realleges and incorporates Paragraphs 5.1 through 6.6 as though fully set forth.

7.2. Plaintiff's Complaint alleges that Cross-Complainant is liable to Plaintiff for [describe the underlying claim]. Cross-Complainant denies all liability to Plaintiff.

7.3. If Cross-Complainant is found liable to Plaintiff, such liability is the direct and proximate result of the conduct, fault, or contractual obligations of Cross-Defendant, and any fault of Cross-Complainant was passive, secondary, derivative, or imputed only.

7.4. Equitable (comparative) indemnity. Under California law, a defendant held liable for harm caused in whole or in part by another may obtain partial or total indemnity from that other party on a comparative-fault basis. Cross-Complainant is entitled to total and/or comparative equitable indemnity from Cross-Defendant for all or a proportionate share of any sums Cross-Complainant may be compelled to pay Plaintiff.

7.5. Express contractual indemnity. To the extent the Agreement obligates Cross-Defendant to indemnify Cross-Complainant, Cross-Complainant is entitled to express contractual indemnity for the losses, judgment, costs, and fees described, according to the terms of the Agreement.

7.6. Cross-Complainant is entitled to recover its reasonable attorney's fees and costs incurred in defending the Underlying Action where recoverable by contract or law.

8. SECOND CAUSE OF ACTION — CONTRIBUTION

(By Cross-Complainant Against Cross-Defendant [THIRD-PARTY NAME])

8.1. Cross-Complainant realleges and incorporates Paragraphs 5.1 through 6.6 as though fully set forth.

8.2. If a money judgment is rendered jointly against Cross-Complainant and Cross-Defendant in the Underlying Action, a right of contribution arises among them under Cal. Code Civ. Proc. §§ 875–876.

8.3. Under Cal. Code Civ. Proc. § 875, the right of contribution is administered in accordance with the principles of equity and may be enforced after one tortfeasor has, by payment, discharged the joint judgment or paid more than his pro rata share, limited to the excess paid over that pro rata share.

8.4. To the extent Cross-Complainant pays more than its pro rata share of any joint judgment in favor of Plaintiff, Cross-Complainant is entitled to contribution from Cross-Defendant under Cal. Code Civ. Proc. §§ 875–876.

9. THIRD CAUSE OF ACTION — EQUITABLE SUBROGATION

(By Cross-Complainant Against Cross-Defendant [THIRD-PARTY NAME])

9.1. Cross-Complainant realleges and incorporates Paragraphs 5.1 through 6.6 as though fully set forth.

9.2. To the extent Cross-Complainant discharges an obligation to Plaintiff that, in equity and good conscience, should be borne by Cross-Defendant, Cross-Complainant is entitled to be subrogated to Plaintiff's rights against Cross-Defendant and to recover from Cross-Defendant the amounts so paid.

9.3. Cross-Complainant has not acted as a mere volunteer; any payment to Plaintiff will be made under compulsion of the Underlying Action and in protection of Cross-Complainant's own interests.

10. FOURTH CAUSE OF ACTION — DECLARATORY RELIEF (DUTY TO DEFEND & INDEMNIFY)

(By Cross-Complainant Against Cross-Defendant [THIRD-PARTY NAME])

10.1. Cross-Complainant realleges and incorporates Paragraphs 5.1 through 6.6 as though fully set forth.

10.2. An actual, present controversy has arisen between Cross-Complainant and Cross-Defendant concerning their respective rights and duties: Cross-Complainant contends that Cross-Defendant is obligated to defend and indemnify it against the Underlying Action; Cross-Complainant is informed and believes that Cross-Defendant disputes that obligation.

10.3. Cross-Complainant seeks a judicial declaration, pursuant to Cal. Code Civ. Proc. § 1060, that Cross-Defendant is obligated to defend and indemnify Cross-Complainant against the claims asserted by Plaintiff in the Underlying Action and to reimburse the costs and fees of defense.

10.4. A declaration is necessary and appropriate so the parties may ascertain their rights and duties before final disposition of the Underlying Action.

11. FIFTH CAUSE OF ACTION — EXPRESS INDEMNITY / "LIABLE OVER"

(By Cross-Complainant Against Cross-Defendant [THIRD-PARTY NAME], per Cal. Code Civ. Proc. § 428.70)

11.1. Cross-Complainant realleges and incorporates Paragraphs 5.1 through 6.6 as though fully set forth.

11.2. As the "third-party plaintiff" defined in Cal. Code Civ. Proc. § 428.70(a), Cross-Complainant claims the right to recover from Cross-Defendant ("third-party defendant") all or part of any amounts for which Cross-Complainant may be held liable to Plaintiff in the Underlying Action.

11.3. By the terms of the Agreement and/or by operation of law, Cross-Defendant is or may be liable over to Cross-Complainant for all or part of Plaintiff's claim, such that if Cross-Complainant is held liable to Plaintiff, Cross-Defendant must answer to Cross-Complainant for that liability.

11.4. Cross-Complainant is therefore entitled to judgment over against Cross-Defendant for all or part of any judgment Plaintiff may obtain against Cross-Complainant, together with costs and attorney's fees of defense where recoverable.

12. PRAYER FOR RELIEF

WHEREFORE, Cross-Complainant prays for judgment against Cross-Defendant [THIRD-PARTY / CROSS-DEFENDANT NAME] as follows:

a. For judgment over against Cross-Defendant for all or part of any judgment rendered against Cross-Complainant and in favor of Plaintiff in the Underlying Action;
b. For total and/or comparative equitable indemnity;
c. For express contractual indemnity in accordance with the Agreement;
d. For contribution under Cal. Code Civ. Proc. §§ 875–876 to the extent Cross-Complainant pays more than its pro rata share of any joint judgment;
e. For equitable subrogation to Plaintiff's rights against Cross-Defendant for amounts paid;
f. For a declaration that Cross-Defendant has a duty to defend and indemnify Cross-Complainant against the Underlying Action;
g. For Cross-Complainant's reasonable attorney's fees and costs of defense as permitted by contract or law;
h. For costs of suit incurred herein;
i. For prejudgment and post-judgment interest at the maximum legal rate; and
j. For such other and further relief as the Court deems just and proper.

13. DEMAND FOR JURY TRIAL

Cross-Complainant demands a trial by jury on all issues so triable. ☐ Yes ☐ No

14. SIGNATURE BLOCK

DATED: [__/__/____]

[LAW FIRM NAME]

By: [____________________________]

[ATTORNEY NAME], State Bar No. [________]

Attorneys for Defendant and Cross-Complainant [DEFENDANT / CROSS-COMPLAINANT NAME]

[STREET ADDRESS]

[CITY, STATE ZIP]

Telephone: [____________]

Email: [____________]

15. VERIFICATION

I, [NAME], am the [Title/Position] of Cross-Complainant in the above-entitled action. I have read the foregoing Cross-Complaint and know its contents. The same is true of my own knowledge, except as to matters stated on information and belief, and as to those matters I believe them to be true.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed on [__/__/____], at [City, State].

[____________________________]

[NAME OF SIGNATORY]

16. ISSUANCE & SERVICE OF SUMMONS ON THE NEW CROSS-DEFENDANT

16.1. Because Cross-Defendant [THIRD-PARTY / CROSS-DEFENDANT NAME] has not appeared in this action, a summons upon the Cross-Complaint shall be issued by the clerk and served upon Cross-Defendant in the same manner as upon commencement of an original action, pursuant to Cal. Code Civ. Proc. § 428.60(1) and §§ 412.20, 413.10–417.40. (Use Judicial Council form SUM-110 (Cross-Complaint).)

16.2. As to any party who has already appeared in the action, this Cross-Complaint shall be served on that party's attorney (or on the party if self-represented) in the manner provided for service of summons or by Chapter 5 (commencing with § 1010), per Cal. Code Civ. Proc. § 428.60(2).

16.3. The newly served Cross-Defendant has 30 days after service of the summons and Cross-Complaint to respond by answer or demurrer (Cal. Code Civ. Proc. §§ 412.20, 432.10). Under Cal. Code Civ. Proc. § 428.70(b), the third-party defendant may, with its answer, file as a separate document a special answer asserting against Plaintiff any defenses the third-party plaintiff has to Plaintiff's claim.

17. PROOF OF SERVICE

I am over the age of 18 and not a party to this action. My business address is [____________].

On [__/__/____], I served the foregoing CROSS-COMPLAINT [and SUMMONS ON CROSS-COMPLAINT (SUM-110)] on the parties in this action by:

☐ Personal delivery (Cal. Code Civ. Proc. § 1011 / personal service of summons under § 415.10 on the new cross-defendant)
☐ Substituted service of summons (Cal. Code Civ. Proc. § 415.20)
☐ U.S. Mail, first-class, postage prepaid, deposited at [City, State] (Cal. Code Civ. Proc. §§ 1013, 1013a) — for parties who have appeared
☐ Electronic service through the Court's e-filing/e-service provider (Cal. Code Civ. Proc. § 1010.6)
☐ Overnight delivery (Cal. Code Civ. Proc. § 1013(c))

addressed as follows:

[NAME, FIRM, ADDRESS, AND/OR E-SERVICE EMAIL OF EACH PARTY SERVED]

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed on [__/__/____], at [City, State].

[____________________________]

[NAME OF DECLARANT]

18. CALIFORNIA PRACTICE NOTES

• No "third-party complaint" in California. Impleader is accomplished by a cross-complaint against a new party under Cal. Code Civ. Proc. § 428.10(b). Do not caption this as a "Third-Party Complaint" or cite Fed. R. Civ. P. 14. The counterclaim was abolished (§ 428.80); use the cross-complaint for counterclaim, crossclaim, and impleader alike.
• "Liable over" vocabulary (§ 428.70). Section 428.70 supplies the "third-party plaintiff"/"third-party defendant" terms for the indemnity cross-complaint and lets the third-party defendant file a special answer asserting the third-party plaintiff's defenses to the plaintiff's claim.
• Timing & leave (§ 428.50). File a cross-complaint against the plaintiff with or before the answer; any other cross-complaint (including against a new party) may be filed any time before a trial date is set. Otherwise obtain leave, which "may be granted in the interest of justice at any time during the course of the action."
• Separate document (§ 428.40). The cross-complaint must be filed as a separate document, not embedded in the answer.
• Bring in the new party with a summons (§ 428.60). Serve a summons on the cross-complaint (SUM-110) on the new cross-defendant in the same manner as an original complaint; the new cross-defendant then has 30 days to respond (§§ 412.20, 432.10).
• Indemnity vs. contribution. Comparative equitable indemnity (American Motorcycle) is the principal impleader theory; statutory contribution (§§ 875–876) requires a joint money judgment in tort and is limited to the excess over a pro rata share. There is no contribution in favor of an intentional tortfeasor (§ 875(d)), and contribution and indemnity are mutually exclusive between two debtors (§ 875(f)).
• Caption. Use Cal. R. Ct. 2.111 format with the same case number as the main action and each party's dual role.
• Fees. A new cross-defendant's first appearance generally requires a first-appearance filing fee; confirm current fees and any cross-complaint filing fee with the clerk.

19. SOURCES & REFERENCES

• Cal. Code Civ. Proc. § 428.10 (cross-complaint; § 428.10(b) impleader of a person alleged to be liable, party or not) — https://leginfo.legislature.ca.gov/
• Cal. Code Civ. Proc. § 428.20 (joinder of additional cross-complainants/cross-defendants)
• Cal. Code Civ. Proc. § 428.30 (uniting other causes of action); § 428.40 (separate document)
• Cal. Code Civ. Proc. § 428.50 (time to file; leave in the interest of justice)
• Cal. Code Civ. Proc. § 428.60 (service of cross-complaint; summons on a non-appearing party)
• Cal. Code Civ. Proc. § 428.70 ("third-party plaintiff"/"third-party defendant"; special answer)
• Cal. Code Civ. Proc. § 428.80 (counterclaim abolished; assert by cross-complaint)
• Cal. Code Civ. Proc. §§ 875–880 (contribution among joint tortfeasors)
• Cal. Code Civ. Proc. § 1060 (declaratory relief); §§ 412.20, 413.10–417.40 (summons & service); § 432.10 (30-day response)
• American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578 (comparative equitable indemnity)
• Cal. R. Ct. 2.111 (form of first page / caption); Judicial Council form SUM-110 (Summons — Cross-Complaint)
• Judicial Council of California, California Rules of Court — https://www.courts.ca.gov/rules.htm

Disclaimer: This template is provided for informational purposes only and does not constitute legal advice. An attorney licensed in California must review and customize this document before filing. Statutes, rules, dollar thresholds, and citations change; verify all authorities before use.