Judge: Anne Hwang, Case: 21STCV08319, Date: 2024-04-26 Tentative Ruling

Case Number: 21STCV08319    Hearing Date: April 26, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

Defendant Sandi Korsen (“Defendant”) moves to strike Plaintiff Bailey Moore’s (“Plaintiff”) request for punitive damages in the complaint. Plaintiff alleges that Defendant struck Plaintiff with a motor vehicle while Plaintiff was riding a bike. Plaintiff opposes and Defendant replies.

Defendant moves to strike the following portions of the complaint:

(1) Paragraph 14a(2), found on page 3, in its entirety, including the words: “punitive damages”; and (2) Any and all other allegations regarding and/or referencing punitive and/or exemplary damages.

LEGAL STANDARD

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).) “A motion to strike any pleading must be filed ‘within the time allowed to respond to a pleading’ –e.g., 30 days after service of the complaint or cross-complaint unless extended by court order or stipulation.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) ¶ 7:159, p. 7(I)-73; Code Civ. Proc., § 435, subd. (b)(1); see also Fireman's Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1147 [“motion to strike must be filed within time to respond to pleading”].) “Unless extended by stipulation or court order, defendant’s answer is due within 30 days after service of the complaint.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) ¶ 6:386, p. 6-121; Code Civ. Proc., § 412.20, subd. (a)(3); see also Sarracino v. Superior Court (1974) 13 Cal.3d 1, 8 [reasoning under Code of Civil Procedure section 412.20 subdivision (a)(3), “[defendant] had 30 days after service in which to file a responsive pleading”].)

California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper.  (Code Civ. Proc. §§ 435; 436(a).)  Motions may also target pleadings or parts of pleadings which are not filed or drawn in conformity with applicable laws, rules or orders.  (Code Civ. Proc. § 436(b).)  A motion to strike is used to address defects that appear on the face of a pleading or from judicially noticed matter but that are not grounds for a demurrer.  (Pierson v Sharp Memorial Hospital (1989) 216 Cal.App.3d 340, 342; see also City & County of San Francisco v Strahlendorf (1992) 7 Cal.App.4th 1911, 1913 (motion may not be based on a party's declaration or factual representations made by counsel in the motion papers).)  In particular, a motion to strike can be used to attack the entire pleading or any part thereof – in other words, a motion may target single words or phrases, unlike demurrers.  (Warren v. Atchison, Topeka & Santa Fe Railway Co. (1971) 19 Cal.App.3d 24, 40.) 

The Code of Civil Procedure also authorizes the Court to act on its own initiative to strike matters, empowering the Court to enter orders striking matter “at any time in its discretion, and upon terms it deems proper.”  (Code Civ. Proc. § 436.) 

MEET AND CONFER

“Before filing a motion to strike . . . the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.”  (Code Civ. Proc., § 435.5, subd. (a).)  If no agreement is reached, the moving party shall file and serve with the motion to strike a declaration stating either: (1) the means by which the parties met and conferred and that the parties did not reach an agreement, or (2) that the party who filed the pleading failed to respond to the meet and confer request or otherwise failed to meet and confer in good faith.  (Code Civ. Proc., § 435.5, subd. (a)(3).)  

Counsel for Defendant has provided the proper declaration and exhibits describing her effort to meet and confer. (McNulty Decl. ¶ 5.)    

OBJECTIONS

The Court declines to rule on Defendant’s evidentiary objections as they have no effect on the ruling herein.

DISCUSSION

The complaint, which seeks punitive damages, was filed on March 3, 2021. Defendant’s answer was filed on May 28, 2021. The instant motion to strike was not filed until March 29, 2024. The Final Status Conference is May 6, 2024.

The Court agrees with Plaintiff that the motion is untimely. Although Defendant argues that the Court should exercise its discretion to rule on an untimely motion to strike sua sponte, the Court declines to address the merits of this motion.

CONCLUSION AND ORDER

Therefore, the Court denies Defendant’s motion to strike.

Defendant shall provide notice of the Court’s order and file a proof of service of such.