NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

INTRODUCTION

This appeal involves the right to an easement. Plaintiffs, Jens Holst, Irving Azoff, Trustee of the Red Oak Trust, Gregory J. Winters, Navy Banvard, certain owners of the Hope Ann Goodrich Easement, brought this action for declaratory relief and to quiet title to the Easement as against any interest defendant Norman Haynie1 might have by virtue of his deed. Haynie appeals from the ensuing summary judgment declaring that he has no right, title, or interest in the Easement. There being no triable issue of fact, we affirm the judgment as a matter of law.

FACTUAL AND PROCEDURAL BACKGROUND

1. Factual predicate

In 1942, the Hope Ann Goodrich Easement was created to provide ingress and egress from the Pacific Coast Highway to certain properties within the Ramirez Canyon Tract in Malibu, California. Plaintiffs are owners of real property located in the Ramirez Canyon Tract. Through their deeds, plaintiffs are owners of the Hope Ann Goodrich Easement, within which they and others constructed and maintain Ramirez Canyon Road, a private roadway.

At issue is property described as Assessor's Parcel Number 4467-003-024 (Haynie's Property or Parcel 24).

In 1995, Haynie's predecessors in interest Alton E. and Joanne Shader, among others, brought an action entitled Hirsh, et al. v. Regency Financial Network, Inc., et al. (LASC No. BC 139917), against the owners of Parcel Number 4467-003-023 (Parcel 23) seeking declaratory relief and to quiet title to an easement by necessity for ingress and egress over Parcel 23 (the Hirsh Action). The Hirsh Action plaintiffs alleged that as of May 3, 1990, Parcels 23, 24, and 25 were commonly owned by Hirsh Action defendant Regent Development Corporation. During the period the Parcels were commonly owned, the Hirsh Action plaintiffs alleged, the only legal access available for ingress and egress to a public street, namely, Pacific Coast Highway, was over Parcel 23 over the DeButts Terrace and along Winding Way. As the result of the sale of Parcels 24 and 25 — and their severance from Parcel 23 — the Hirsh Action plaintiffs alleged that, Parcel 24 was rendered "`landlocked,' that is, Parcel 24 was left without a right of access for ingress and egress to and from a public street." (Italics added.) The Hirsh Action made no reference to Ramirez Canyon Road or the Hope Ann Goodrich Easement.

The Hirsh Action resulted in a separate Judgment Pursuant to a Stipulation and Disclaimer Quieting Title in Appurtenant Floating Easements by Necessity on Real Property. The stipulated judgment was recorded with the Los Angeles Recorder's Office in February 1997. After a default prove-up, the Hirsh Action court entered a Separate Judgment by Default Quieting Title in Appurtenant Floating Easements by Necessity on Real Property. The judgment by default was recorded with the Los Angeles Recorder's Office in March 1997. Specifically, the Hirsh Action judgments both established an easement by necessity in favor of the Property over Parcel 23 to DeButts Terrace and then to the Pacific Coast Highway. The Hirsh Action judgments made no reference to the Hope Ann Goodrich Easement or Ramirez Canyon Road.

Two years later, in 1999, Parcel 24 was acquired by Carlton Desert Enterprises, Inc. (CDE), a Nevada Corporation. That deed was recorded.

CDE conveyed the property to Ellsworth Robert Draper, Jr. in April 2002. The deed into Draper was recorded. Draper signed the deed on behalf of CDE, as grantor. Parcel 24's chain of title contained no document or independent grant of an interest in the Hope Ann Goodrich Easement between entry of the Hirsh Action judgments in 1997 and the deed from CDE to Draper.

Eight months after purchasing Parcel 24, Draper reconveyed the property to CDE by way of a quitclaim deed dated December 11, 2002. Suddenly, the Hope Ann Goodrich Easement's legal description appeared in CDE's quitclaim deed. CDE's quitclaim deed was also recorded.

Haynie purchased the property on August 31, 2004 from CDE for $420,000. Haynie's deed also included the Hope Ann Goodrich Easement. Haynie's deed was recorded.

2. Procedural history

Plaintiffs brought this action seeking declaratory relief and to quiet title in the Hope Ann Goodrich Easement as against Haynie's adverse claims. In their operative complaint, plaintiffs alleged that Haynie claimed a right of access from Pacific Coast Highway up Ramirez Canyon Road and over the Hope Ann Goodrich Easement in his application for a coastal development permit filed with the City of Malibu. This right, the complaint alleged, was "base[d] . . . on a change in the legal description of the Haynie Property, which appeared in the chain of title to the Haynie Property after the [Hirsh Action] Judgment . . . was entered." Plaintiffs alleged that the deeds from CDE to Draper and from Draper back to CDE were not lawfully prepared, and that as a result, those deeds did not lawfully convey the Hope Ann Goodrich Easement for the benefit of Parcel 24. Plaintiffs sought a declaration that Haynie had no right, title, or interest in the Hope Ann Goodrich Easement and that the deeds between CDE and Draper purporting to include the Easement are incorrect. Plaintiffs also sought to quiet title by establishing as unlawful, Haynie's claim that Parcel 24 is a beneficiary of the Easement and that Parcel 24's owners may utilize Ramirez Canyon Road to gain access to Pacific Coast Highway.

Haynie answered the complaint and filed a cross-complaint for declaratory relief and to quiet title to his right in an easement for the use of Ramirez Canyon Road as appurtenant to his property or by prescription.

Plaintiffs moved to strike Haynie's cross-complaint on the ground it was untimely filed in contravention of a court order and the statutory timeline for filing cross-complaints. The trial court granted plaintiffs' motion and struck Haynie's cross-complaint.

Once the matter was at issue, plaintiffs moved for summary judgment on the grounds, there being no triable issue of fact, that Haynie owned no right, title, or interest in the Hope Ann Goodrich Easement and that the inclusion of the Hope Ann Goodrich Easement in Haynie's deed was without legal basis or validity. Plaintiffs relied on (1) the admissions made by Haynie's predecessors in interest during the Hirsh Action; (2) the conclusive effect of the 1997 Hirsh Action judgments; (3) Parcel 24's title history subsequent to 1997 revealing a "mysterious appearance" of the Easement's legal description in CDE's 2002 quitclaim deed; and (4) the precept that grantors cannot convey more property than they own.

Haynie opposed the motion arguing that (1) plaintiffs did not carry their burden to demonstrate that Haynie had no right, title, or interest in the Hope Ann Goodrich Easement because plaintiffs' motion did not track Parcel 24's chain of title back to the creation of the Easement. (2) An appurtenant easement is transferred as a matter of law even if not specifically mentioned in the deed. (3) Haynie obtained a prescriptive easement based on continued use since 2002.

The trial court granted plaintiffs' summary judgment motion and entered judgment declaring that Haynie had no right, title, or interest in the Hope Ann Goodrich Easement based on his deed. The court ordered, until Haynie acquired or established an interest in the Easement, that he and his successors in interest are not entitled to use Ramirez Canyon Road for ingress or egress to Pacific Coast Highway or for any other purpose. Hayne's timely appeal followed.

CONTENTIONS

Haynie contends the trial court erred in granting summary judgment and abused its discretion in striking his cross-complaint.

DISCUSSION

1. Standard of review of a grant of summary judgment

"The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. [Citation.]" (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)

We begin with the rudimentary principle in summary judgment procedure that "`[i]n reassessing the merits of the [summary judgment] motion, we "consider only the facts properly before the trial court at the time it ruled on the motion."' [Citation.] `"The pleadings define the issues to be considered on a motion for summary judgment"' [citation], and the issues framed by the pleadings are the only issues a motion for summary judgment must address [citation]. We also limit our inquiry to issues raised in the briefs on appeal. [Citation.]" (Physicians Committee For Responsible Medicine v. McDonald's Corp. (2010) 187 Cal.App.4th 554, 568.)

"[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. . . ." "[A] plaintiff [moving for summary judgment] bears the burden of persuasion that `each element of' the `cause of action' in question has been `proved,' and hence that `there is no defense' thereto." (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850, fn. omitted; Code Civ. Proc., § 437c, subd. (p)(1).) "[A] `plaintiff . . . has met' his `burden of showing that there is no defense to a cause of action if' he `has proved each element of the cause of action entitling' him `to judgment on that cause of action.'" (Aguilar v. Atlantic Richfield Co., supra, at p. 849.) The moving party plaintiff's burden does not include disproving defendants' affirmative defenses. (Santa Ana Unified School Dist. v. Orange County Development Agency (2001) 90 Cal.App.4th 404, 411.) "Once plaintiff met its initial burden, the burden shifted to defendants to produce admissible evidence showing a triable issue of fact. [Citations.] A party may not rely on defenses in pleadings without evidence to support them. [Citations.]" (Ibid.) That is, a triable issue can only be demonstrated with admissible evidence properly presented to the court. (Ibid.)

2. Plaintiffs carried their burden on summary judgment to demonstrate that Haynie has no lawful interest in the Hope Ann Goodrich Easement and thus no right to use Ramirez Canyon Road, which runs through the Easement.

Plaintiffs brought an action to quiet title to establish their title against Haynie's adverse claim. (Code Civ. Proc., § 760.020, subd. (a).) Ordinarily, the elements of an action to quiet title are that: (1) "the plaintiff is the owner and in possession of the land" and (2) "the defendant claims an interest therein adverse to him. [Citations.]" (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 740-741; Lucas v. Sweet (1956) 47 Cal.2d 20, 22.)

Turning to the complaint, plaintiffs alleged their ownership interest in and possession of the Hope Ann Goodrich Easement, and that Haynie claims to be a beneficiary of that Easement based on his deed. The deed is erroneous and unlawful, plaintiffs alleged, and so Haynie has no right to the Easement. Plaintiffs sought a declaration therefore establishing that Haynie has no right, title, or interest in the Hope Ann Goodrich Easement or to Ramirez Canyon Road.

Haynie attempts to recharacterize the complaint far more expansively. He argues that the complaint seeks to establish that Haynie has no right, title, or interest however created. Haynie is wrong. The operative complaint clearly relies specifically on Haynie's claim to a right, title, and interest in the Easement "base[d] . . . on a change in the legal description of the Haynie Property, which appeared in the chain of title to the Haynie Property . . . ." Haynie's claim of right by virtue of the creation of an easement by other means was pleaded in his cross-complaint, which pleading the trial court struck. Therefore, the only relevant allegations for purposes of framing the issues in the summary judgment motion are those involving Haynie's asserted right to the Easement by virtue of his deed. (Carranza v. Noroian (1966) 240 Cal.App.2d 481, 488 [trial court properly excluded defendant's evidence about new matter involving different facts and proof from plaintiff's case where no affirmative defense in answer and no cross-complaint was filed raising that new matter].) Plaintiffs are not required to negate every possible manner that an easement for the benefit of Parcel 24 was created.

a. Plaintiffs established their ownership and possession of the Hope Ann Goodrich Easement.

In support of their claim of title as against Haynie, plaintiffs provided the following undisputed facts: Plaintiffs are owners of certain parcels in the Ramirez Canyon Tract and, by their deeds, are owners of the Hope Ann Goodrich Easement, within which they constructed Ramirez Canyon Road, a private road for ingress and egress from Pacific Coast Highway to certain properties within the Ramirez Canyon Tract.

b. Plaintiffs established that Haynie's property did not have any right, title, or interest in the Hope Ann Goodrich Easement in 1997.

With respect to Haynie's claim of interest adverse to plaintiffs based on his deed, the undisputed evidence in support of plaintiffs' summary judgment motion shows first that, as of 1997, Parcel 24 was landlocked, as demonstrated by the Hirsh Action. In the Hirsh Action, Alton E. and Mrs. Joanne Shader, Haynie's predecessors in interest and the owners of Parcel 24, asserted that once Parcels 24 and 25 were severed from common ownership with Parcel 23, Parcel 24 was rendered: "`landlocked,' that is, Parcel 24 was left without a right of access for ingress and egress to and from a public street." (Italics added.)

A declaration against interest made by the Hirsh Action plaintiffs, who were title holders at the time, and who are Haynie's predecessors in interest, are binding on Haynie as declarations against pecuniary interest or as in the nature of vicarious admissions. (Evid. Code, § 1225;2 Stanley v. Green (1859) 12 Cal. 148, 163; Wright v. Best (1942) 19 Cal.2d 368, 379.) These declarations are not hearsay, Haynie's contention to the contrary notwithstanding. "The declarations of the grantor are admissible, not only as against himself but against parties claiming under him. The subsequent claimants are considered as standing in his place, and as having taken the title cum onere, subject to the same changes and restrictions which attached to it in his hands. It matters not whether the declarations relate to the limits of the party's own premises, or the extent of his neighbor's, or to the boundary line between them, or to the nature of the title he asserts. If their purport is to restrict his own premises, or lessen his own title, they are admissible." (Stanley v. Green, supra, at p. 163.)

Haynie argues Evidence Code section 1225 is not applicable because Mr. Hirsh was not the owner of the subject property, but a lienholder and hence not a predecessor-in-interest of Haynie's. Not so. Reading the Hirsh Action complaint, it alleges that named plaintiffs Alton E. and Joanne Shader, Donald W. Henry, and Margaret L. Vogelsang were the "owners of . . . Parcel `24'." Moreover, Evidence Code section 1225 includes holders of an interest, as well as holders of a right or title. Clearly, a trustee under a deed of trust, who holds a lien on the property (4 Miller & Starr, Cal. Real Estate (3d ed. 2000) § 10:2, p. 15) has an interest. Hence, if Hirsh was the trustee under a trust deed, as lienholder, he too qualified as a declarant under Evidence Code section 1225. In short, the assertions of plaintiffs Shader, Henry, and Vogelsang, along with Hirsh, in the 1995 complaint "will support a finding, particularly in the absence of any showing to the contrary" (Wright v. Best, supra, 19 Cal.2d at p. 379) that their property, Parcel 24, was landlocked, without any access in 1997. Such admission is binding on Haynie.

In addition to the declaration in the Hirsh Action, the judgments in that lawsuit also conclusively establish that Parcel 24 was not benefitted by the Hope Ann Goodrich Easement as of 1997. Those judgments established an easement by necessity for ingress and egress over Parcel 23. "`[T]o establish an easement by necessity, the dominant tenement must be completely landlocked; the easement must be absolutely necessary for access to the dominant tenement, and there cannot be any other possible means of access.' [Citation.]" (Dubin v. Robert Newhall Chesebrough Trust (2002) 96 Cal.App.4th 465, 477, italics added, quoting from 6 Miller & Starr, Cal. Real Estate, supra, § 15:28, p. 102, fn. omitted.) The Hirsh Action judgments established an easement by necessity in favor of Parcel 24 over Parcel 23 to DeButts Terrace and Winding Way exactly because Parcel 24 was landlocked, i.e., there was no other possible means of access.

With respect to the matter directly adjudged, a judgment is conclusive between the parties and their successors in interest by title subsequent to the commencement of the action, provided the successors have actual or constructive notice of the action. (Code Civ. Proc., § 1908, subd. (a)(2).)3 There is no dispute that the Hirsh Action judgments were both duly recorded and so Haynie had constructive notice of them. (Civ. Code, § 1169; Gov. Code, §§ 27280, subd. (a) & 27282, subd. (a)(1); cf. Peterson v. Weissbein (1889) 80 Cal. 38, 39.) Accordingly, the Hirsh Action judgments both established that Parcel 24 was landlocked and created an easement other than the Hope Ann Goodrich Easement.

Haynie argues that the trial court erred in relying on Code of Civil Procedure section 1908 because the Hirsh Action did not adjudicate rights across Ramirez Canyon Road. As explained, to obtain an easement by necessity, the Hirsh Action plaintiffs had to show that Parcels 24 was landlocked and had no ingress or egress, even by use of existing way, such as Ramirez Canyon Road. That is, necessarily, the Hirsh Action court saw fit to create access over Parcel 23 because Parcel 24 had no access to Pacific Coast Highway at all, by way of Ramirez Canyon Road or otherwise, and hence no right to the Easement.

Haynie cites McDougall v. Palo Alto etc. School Dist. (1963) 212 Cal.App.2d 422 to argue that issue preclusion, one aspect of the res judicata effect of a final judgment, cannot be utilized offensively. However, plaintiffs and the trial court did not rely on issue preclusion, they relied on Code of Civil Procedure section 1908. "[T]he only important exceptions to the rule that collateral estoppel does not work against a stranger [citations] are . . . . [¶] (2) Judgments transferring title to property, which are binding on third persons as well as privies. [Citations.]" (7 Witkin, Cal. Procedure (5th ed. 2008) Judgment, § 470, p. 1135.) The Hirsh Action judgments are binding on Haynie as a successor in interest. Therefore, McDougall is irrelevant to the conclusive effect of section 1908.

To summarize, plaintiffs conclusively established that as of the date of the Hirsh Action judgments, February and March 1997, by virtue of its severance from Parcel 23, Parcel 24 was landlocked, i.e., it had no possible means of access to Pacific Coast Highway, over Ramirez Canyon Road or otherwise. Stated differently, Haynie's property did not have any right, title, or interest in the Hope Ann Goodrich Easement as of 1997.

c. Plaintiffs established that Haynie's deed did not lawfully include the Hope Ann Goodrich Easement.

Plaintiffs next established by undisputed evidence that the property description for the Hope Ann Goodrich Easement was not in Haynie's chain of title between 1997 and December 2002, when it suddenly appeared in the quitclaim deed into CDE. There is no document in the chain of title after 1997 creating a right to use the Easement in favor of Haynie's property. Haynie's predecessors in interest could not lawfully convey to him more property rights than they owned merely by including them in the legal description. (Claudino v. Pereira (2008) 165 Cal.App.4th 1282, 1289; Stanley v. Shierry (1958) 158 Cal.App.2d 373, 376.) Thus, plaintiffs carried their burden to show that the appearance of the Easement's property description in Haynie's deed was improper as a matter of law.

On appeal, Haynie contends that plaintiffs failed to carry this burden. He reasons plaintiffs omitted to trace his chain of title back to the 1942 creation of the Easement to demonstrate the negative, namely, that the Easement was never appurtenant to Parcel 24. He argues appurtenant easements transfer without the necessity of any writing and so any omission from his deed of the property description for the Hope Ann Goodrich Easement proves nothing. Haynie is wrong.

As explained, plaintiffs carried their burden to demonstrate indisputably that Haynie's Parcel 24 was landlocked as of 1997. Logically, that Parcel 24 was landlocked in the 1990's means it had no right of access and so the Easement could not have been appurtenant to Parcel 24 between 1942 and 1997, regardless of whether it could have been written into his predecessor's deeds. It was unnecessary for plaintiffs to trace the chain of title from the time of the Easement's creation to 1995 to prove this fact.

d. Plaintiffs negated Haynie's affirmative defense that he was a bona fide purchaser for value.

Haynie's answer raised the defense that he was a bona fide purchaser for value. Although plaintiffs moving for summary judgment are not obligated to disprove defendant's affirmative defenses (Santa Ana Unified School Dist. v. Orange County Development Agency, supra, 90 Cal.App.4th at p. 411), they did address Haynie's claim to be a bona fide purchaser for value.

"[A] bona fide purchaser for value who acquires his interest in real property without notice of another's asserted rights in the property takes the property free of such unknown rights. [Citations.]" (Hochstein v. Romero (1990) 219 Cal.App.3d 447, 451, italics added.) However, a properly "recorded document imparts constructive notice to subsequent purchasers and precludes them from acquiring the property as bona fide purchasers without notice, because the law conclusively presumes that a party acquiring property has notice of the contents of a properly recorded document affecting such property. [Citations.]" (Id. at p. 452, citing Civ. Code, §§ 1213, 1214; Civ. Code, § 1169.) There is no dispute that the Hirsh Action judgments were properly recorded. That recordation put Haynie on constructive notice that his property's only access to Pacific Coast Highway was by way of the easement by necessity over Parcel 23 created by those judgments, and by implication not by way of Ramirez Canyon Road on the Hope Ann Goodrich Easement. Being on constructive notice, Haynie was not a bona fide purchaser for value.

Haynie also raised the affirmative defense that he had obtained an easement by prescription. However, as explained, plaintiffs moving for summary judgment are not obligated to disprove defendant's affirmative defenses. (Santa Ana Unified School Dist. v. Orange County Development Agency, supra, 90 Cal.App.4th at p. 411.) "[H]ow the parties moving for, and opposing, summary judgment may each carry their burden of persuasion and/or production depends on which would bear what burden of proof at trial." (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 851.) Haynie carried the burden to prove an affirmative defense. Thus, plaintiffs' omission from their moving papers to address the affirmative defense of easement by prescription is not fatal to the success of their summary judgment motion. In opposing summary judgment, Haynie failed to raise any trial issue with respect to this defense. In any event, we note that the statute of limitation for prescriptive easements is five years. (Harrison v. Welch (2004) 116 Cal.App.4th 1084, 1090.) Haynie established that he purchased Parcel 24 on August 31, 2004 but plaintiffs' complaint was filed on February 20, 2008, fewer than five years later. Thus, as a matter of law, Haynie did not demonstrate an element of his right to an easement by prescription.

To summarize, the undisputed evidence shows that Parcel 24 had no right or title to, nor interest in, the Hope Ann Goodrich Easement before or after 1997, and that the Draper and Haynie deeds unlawfully included such right. Plaintiffs thus carried their burden in moving for summary judgment to demonstrate their right as a matter of law to the judgment quieting title to the Easement as against Haynie and to the declaration that Haynie's deed did not lawfully contain an interest in the Hope Ann Goodrich Easement.

3. Haynie raised no triable issue of material fact about his right to the Hope Ann Goodrich Easement.

The burden shifted to Haynie to produce admissible evidence showing a triable issue of fact. (Santa Ana Unified School Dist. v. Orange County Development Agency, supra, 90 Cal.App.4th at p. 411.) In opposing summary judgment, Haynie presented his declaration and that of his attorney. The trial court sustained plaintiffs' evidentiary objections to nearly every line of the declarations. Haynie's brief on appeal does not present argument to challenge those evidentiary rulings. Accordingly, he has forfeited that contention on appeal. (Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [contentions forfeited on appeal when not raised and supported with reasoned argument and citations to authority].) Haynie's opposition did not demonstrate a triable issue of fact that the grantors of the Hope Ann Goodrich Easement intended to grant an easement to Parcel 24. That portion of his attorney's declaration discussing such intent was ruled inadmissible by the trial court. Reviewing Haynie's admissible evidence in opposition to the summary judgment motion, he did not raise a triable factual issue about an independent grant after 1997 that would explain the sudden appearance of the Hope Ann Goodrich Easement in his immediate predecessors' deeds. Haynie's opposition to the summary judgment, relying as it does solely on legal arguments did not demonstrate triable factual issues about his right or title to, or interest in, the Hope Ann Goodrich Easement, the property description for which was unlawfully included in Haynie's deed.4

4. The trial court properly struck Haynie's cross-complaint.

When the trial court sustained Haynie's demurrer to plaintiffs' first amended complaint, on September 10, 2008, it gave plaintiffs 10 days to file an amended complaint. The order further stated that "Cross-Complaint to be filed within ten (10) days of service of the First Amended Complaint." Plaintiffs timely filed their second amended complaint on September 19, 2008. Thus, Haynie had until September 29, 2008 to file his cross-complaint. Haynie did not file his cross-complaint until October 21, 2008, 22 calendar days after the court's deadline for filing. The trial court granted plaintiffs' motion to strike the cross-complaint on the ground it was untimely filed in contravention of court order and the statutory deadline for filing cross-complaints. (Code Civ. Proc., §§ 435, 436, subd. (b) & 428.50.)

The trial court "may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: [¶] . . . [¶] (b) Strike out all or any part of any pleading . . . ." (Code Civ. Proc., § 436.) "Section 436 gives the trial court discretion to strike out all or any part of a pleading not filed in conformity with the laws of this state. An order striking a pleading [citation] is reviewed for abuse of discretion. [Citation.]" (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145.)

Here, the trial court ordered that Haynie file his cross-complaint within 10 days of plaintiffs' service of their amended complaint. Haynie filed his cross-complaint 22 days later, without seeking leave of the court, and so the trial court did not abuse its discretion in striking the cross-complaint.

Haynie's argument that plaintiffs' counsel agreed to an extension of time for filing is unavailing. The record clearly reflects that although plaintiffs' counsel agreed to an extension of time to file the answer, counsel refused to agree to an extension for the cross-complaint. His letter to Haynie's attorney on October 14, 2008 stated, "I unfortunately cannot agree to voluntarily provide you with such an extension [for the cross-complaint]. [¶] I cannot voluntarily agree to extend a Court-ordered limitations period under which my clients may be sued."

Nor is it relevant whether the cross-complaint was compulsory or permissive. Code of Civil Procedure section 428.50 requiring leave of court does not distinguish between types of cross-complaints.

Haynie argues that he did not ignore the trial court's order, "but rather were under the belief, mistaken as it was, that the extension within which they had obtained to Answer the Complaint was applicable to the filing of a concurrent Cross-Complaint." Apart from whether such an argument is more properly made in a motion for relief (Code Civ. Proc., § 473) in the trial court, which motion Haynie did not file, California Rules of Court, rule 3.1320(j)(2) clearly grants a party 10 days following the sustaining of a demurrer with leave to amend to file a cross-complaint. Haynie's cross-complaint was filed more than 20 days later. Thus, the trial court's order aside, Haynie was required by the rules of court to file his answer and cross-complaint 10 days after plaintiffs filed their second amended complaint. The trial court did not abuse its discretion in granting plaintiffs' motion to strike the cross-complaint.

5. The motion for sanctions is denied.

Plaintiffs move for sanctions for filing a frivolous appeal. (Cal. Rules of Court, rule 8.276(a); In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) We ordered that the motion would be considered with the appeal. We deny the motion.

DISPOSITION

The judgment is affirmed. Each party to bear their own costs of appeal.

We concur:

KLEIN, P. J.

CROSKEY, J.