Judge: Anne Hwang, Case: 21STCV09224, Date: 2023-08-09 Tentative Ruling

Case Number: 21STCV09224    Hearing Date: October 18, 2023    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

On March 9, 2021, Plaintiffs Eduardo Ramirez and Jorge Medrano (Plaintiffs) filed a complaint for injuries resulting from a motor vehicle accident. Defendants Shippers Transport Express, Inc. and Tony Doninelli (Defendants) move to strike portions of Plaintiffs’ complaint alleging a loss of earning capacity. Plaintiff Eduardo Ramirez opposes.

Defendants move to strike the following portions of the complaint:

1)      Paragraph 17, the words, “…loss of earning/earnings capacity…”

2)      Paragraph 25, the words, “…loss of earning/earnings capacity…”

3)      Paragraph 33, the words, “…loss of earning/earnings capacity…”

4)      Plaintiffs’ Prayer, Paragraph C, the words, “Loss of earnings/earnings capacity…”

LEGAL STANDARD

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.) 

A motion to strike any pleading must be filed within the time allowed to respond to a pleading, which is 30 days after service of the Complaint or Cross-Complaint unless extended by court order or stipulation. (Code Civ. Proc. § 435 (b)(1).)  

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).)  

While Defendants have filed a declaration, it does not appear they attempted to meet and confer in person or by telephone. Therefore, the meet and confer process was insufficient, but is not a basis for granting or denying the motion. (Code Civ. Proc. § 435.5(a)(4).)

JUDICIAL NOTICE

Defendants request that the Court take judicial notice of Plaintiff’s May 5, 2022 deposition under Evidence Code section 452(h). Section 452(h) allows the court to take judicial notice of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452(h).)

Matters are ordinarily subject to judicial notice when they are “reasonably beyond dispute.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113.) As a result, a court can take judicial notice of the existence of a document. However, it cannot take judicial notice of the truth of statements within that document if they are reasonably disputable. (Id.) The Court of Appeal has approached judicial notice of deposition testimony differently. Some courts have held that the truth of statements within deposition transcripts can never be judicially noticed. (Garcia v. Sterling (1985) 176 Cal.App.3d 17, 22.) Others have held statements within deposition transcripts can be judicially noticed only if they are statements by the plaintiff or his agent which are inconsistent with the pleadings. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) A third approach allows judicial notice “only in those instances where there is not or cannot be a factual dispute concerning that which is sought to be judicially noticed.” (Cruz v. County of Los Angeles (1985) 173 Cal.App.3d 1131, 1134; Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374–75.)

Here, Defendants request the Court to take judicial notice of Plaintiff’s statements within his deposition testimony. These statements purportedly indicate that Plaintiff is not pursuing a loss of earnings capacity claim against Defendants. However, this fact is not “reasonably beyond dispute” because there is a factual dispute regarding the truthfulness of Plaintiff’s deposition testimony in light of Plaintiff’s argument that he did not understand certain questions. (Opp., 6, 7; Exh. D.)  Therefore, the Court declines to take judicial notice under section 452(h).  

DISCUSSION

Here, the complaint was filed on March 9, 2021. Defendants filed their answer on April 14, 2021. This motion was filed on September 21, 2023, more than two years later. Since this motion was not brought within the time allowed to respond to the complaint, it is untimely. (Code Civ. Proc. § 435 (b)(1).)  

More importantly, Defendants’ motion to strike is denied because they have failed to show a defect on the face of the complaint or based on any judicially noticeable matter. Defendants’ motion is in essence a motion for summary adjudication, as it relies on the Court’s consideration of extrinsic evidence. However, as discussed above, there appears to be a factual dispute.

CONCLUSION AND ORDER

Therefore, the Court DENIES the motion to strike.

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