Loney

Charles Milton Loney and June Loney Marco (petitioners) seek an extraordinary writ directing respondent superior court to vacate its order striking their cross-complaint against real party in interest Louis Deadrich. The petition presents the issue whether Code of Civil Procedure section 428.50 authorizes a third party cross-complaint to be filed without leave of court after a trial date has been set but later vacated. We shall deny the petition.

The original complaint was filed in 1979 and amended in 1981. Deadrich is not a party to the main action but with that exception, all other real parties in interest are named plaintiffs. Petitioners are named defendants and they answered the amended complaint. In August 1982, plaintiffs filed an at-issue memorandum. The case has since been set for trial three times. The last trial date assigned, January 31, 1984, was vacated by stipulation of the parties.

On April 30, 1984, when no trial date was pending, petitioners filed a cross-complaint against Deadrich for fraud and negligent misrepresentation. The cross-complaint was based on events occurring between 1967 and 1975, and alleged that the facts underlying the claim were…