Judge: Anne Hwang, Case: 21STCV33971, Date: 2023-09-26 Tentative Ruling

Case Number: 21STCV33971    Hearing Date: October 9, 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

Defendant City of Pico Rivera (Defendant) moves the Court to strike Plaintiffs Francisco Rosas Monetrrosas and Hugo Garcia Rosas’ (Plaintiffs) first amended complaint (FAC) filed on May 25, 2023 for failing to comply with a Court order, pursuant to Code of Civil Procedure section 436(b).

The opposition was due September 26, 2023. No opposition has been filed.

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 court 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.) 

“If a motion to strike is granted pursuant to Section 436, the court may order that an amendment or amended pleading be filed upon terms it deems proper.” (Code Civ. Proc. § 472a(d).) “When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.” (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768.) “This is analogous to an order sustaining a demurrer. If there is a reasonable possibility a demurrable defect could be cured by amendment, it is ordinarily an abuse of discretion to deny leave to amend, a drastic step which leads to complete termination of the pleader's action.” (Id.)

Plaintiffs have the burden of showing in what manner the amended complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action. (See The Inland Oversight Committee v. City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v. Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.) The plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim. (See PGA West Residential Assn., Inc. v. Hulven Int'l, Inc., supra, 14 Cal.App.5th at 189.) Moreover, a plaintiff does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that “if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend.” (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v Bank of America (2014) 226 Cal.App.4th 594, 618, 619 [asserting an abstract right to amend does not satisfy the burden].)

JUDICIAL NOTICE

Defendant has not requested judicial notice, however the Court on its own takes judicial notice pursuant to Code of Civil Procedure section 437(b) of the following: (1) the Court’s Minute Order on April 13, 2023; (2) Plaintiff’s FAC filed on May 25, 2023; and (3) the Court’s September 26, 2023 Minute Order. (Evid. Code § 452(d).) 

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 (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 (a)(3).)

Here, Defendant’s counsel declares she met and conferred with Plaintiff’s counsel who declined to dismiss the FAC. (Doumanian Decl. ¶ 8.) Defendant does not describe the means by which they conferred. However, “[a] determination by the court that the meet and confer process was insufficient shall not be grounds to grant or deny the motion to strike.” (Code Civ. Proc. § 435.5(a)(4).)     

DISCUSSION

On April 13, 2023, the Court granted Defendant’s motion to strike Plaintiffs’ original complaint for failing to comply with the claim presentation requirements under the Government Claims Act. (Min. Order, April 13, 2023.) Plaintiffs however, argued they had filed an Application for Leave to file a later claim with Defendant and a Motion for relief from Government Code section 945.4. As a result, the Court wrote: “The Court orders Plaintiffs to file and serve an amended complaint within 30 days after the Court rules on Plaintiffs’ Motion for Relief of Government Code section 945.4.” (Id.)  

However, on May 25, 2023, Plaintiffs filed their FAC, before the Court ruled on the motion for relief scheduled on September 26, 2023.

On September 26, 2023, the Court denied Plaintiff’s petition for relief from Government Code section 945.4. (Min. Order, September 26, 2023.) Accordingly, the motion to strike the entire FAC is granted pursuant to Code of Civil Procedure section 436(b). Plaintiffs do not oppose this motion and therefore, have not provided information on how their claims can proceed in light of the September 26, 2023 order. Thus, they have not met their burden to show in what manner their complaint could be amended.

CONCLUSION AND ORDER

Therefore, the Court GRANTS Defendant’s motion to strike without leave to amend. Defendant shall file and serve a proposed judgment within 20 days.

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