Judge: Anne Richardson, Case: 22STCV28016, Date: 2023-07-21 Tentative Ruling

Case Number: 22STCV28016    Hearing Date: November 8, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

On August 29, 2022, Plaintiff Anahitasadat Abolghasemi (Plaintiff) initiated this action by filing a Complaint alleging eight claims against Defendants 99 Cents Only Stores, LLC, Bargain Wholesale, and Does 1 to 100: (1) General Negligence; (2) Gross Negligence; (3) Product Liability/Failure to Warn; (4) Negligence/Product Liability; (5) Negligent Hiring, Supervision, and Retention of Employee; (6) Strict Products Liability; (7) Breach of Warranty of Merchantability; and (8) Breach of Implied Warranty of Fitness for Particular Purpose.

The claims arose from allegations that Defendants are a manufacturer, wholesaler, distributor, or retailer of “Roxi” lighters and that, on August 19, 2021, while sitting inside her personal vehicle, Plaintiff attempted to use a “Roxi” lighter purchased from Defendants, only for the lighter to explode in her hand, resulting in serious injuries and burns to her hands and face, with Plaintiff dropping the lighter inside the vehicle, causing a fire to spread therein, thus causing additional damages and injuries.

On March 1, 2023, Defendants 99 Cents Stores and Bargain Wholesale filed a demurrer to the Complaint’s second, fifth, seventh, and eighth causes of action.

Plaintiff failed to oppose the demurrer, which came before the Court on July 21, 2023. On that date, the Court sustained the demurrer as to the Complaint’s second and fifth causes of action, with leave to amend, and overruled the demurrer as to the Complaint’s sixth and eighth causes of action. The Court gave Plaintiff leave to amend the pleadings within 20 days of July 21, 2023, i.e., by August 10, 2023. Plaintiff’s counsel attended the hearing and requested 20 days, rather than the 14 indicated in the initial, tentative ruling.

On August 17, 2023, Plaintiff filed a First Amended Complaint (FAC) suing Defendants 99 Cents Stores, Bargain Wholesale, and Does 1 to 100 for (1) General Negligence, (2) Product Liability/Failure to Warn, (3) Negligence/Product Liability, (4) Strict Products Liability, (5) Breach of Warranty of Merchantability, and (6) Breach of Implied Warranty of Fitness for Particular Purpose. (The FAC does not contain the two claims against which Defendants’ demurrer was sustained on July 21, 2023.) The claims arise from the same general allegations as the Complaint.

On August 17, 2023, Defendants 99 Cents Stores and Bargain Wholesale moved to strike the FAC on the grounds that Plaintiff filed the pleading without leave of court and without a stipulation by the parties, under circumstances where Plaintiff could not amend her pleadings as a matter of course. The motion was set for hearing on November 8, 2023.

On September 20, 2023, the Court held a case management conference, at which time the Court noted that the motion to strike was on calendar for November 8, 2023.

On October 23, 2023, Plaintiff opposed the motion to strike.

On October 31, 2023, Defendants 99 Cents Stores and Bargain Wholesale replied to the opposition.

Defendants’ motion to strike is now before the Court.

Motion to Strike

Legal Standard

The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (a) strike out any irrelevant, false, or improper matter inserted in any pleading; or (b) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc. § 436, subds. (a), (b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

For the purposes of a motion to strike pursuant to Sections 435 to 437 of the Code of Civil Procedure, the term “pleading” generally means a demurrer, answer, complaint, or cross-complaint, (Code Civ. Proc., § 435, subd. (a)), and an immaterial allegation or irrelevant matter in a pleading entails (1) an allegation that is not essential to the statement of a claim or defense, (2) an allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense, or (3) a demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint (Code Civ. Proc., § 431.10, subds. (b)(1)-(3), (c)).

Order Striking First Amended Complaint: DENIED.

In their motion, Defendants 99 Cents Stores and Bargain Wholesale argue that the Court should strike the August 17, 2023 FAC because it was filed 7 days after the 20-day deadline given by the Court in the July 21, 2023 minutes, without leave of court or a stipulation by the parties, thus constituting a filing not made in conformity with the laws of the State of California. The declaration from counsel attached to the motion to strike fails to elaborate on meet and confer efforts. (Mot., pp. 3-5; Mot., Anz Decl., ¶¶ 1-6, Ex. A [Jul. 21, 2023 minutes].)

In opposition, Plaintiff argues that the motion to strike has no merit based on a liberal construction of the pleadings and that the strong public policy of deciding cases on the merits disfavors striking the FAC. Plaintiff also argues that Defendants come to the Court with unclean hands by failing to meet and confer and that any late filing of the FAC should be excused pursuant to Code of Civil Procedure section 473, subdivision (b). (Opp’n, pp. 2-6.)

In reply, Defendants 99 Cents Stores and Bargain Wholesale argue that defense counsel sought to meet and confer with Plaintiff’s counsel but that Plaintiff’s counsel failed to respond to meet and confer requests. Defendants otherwise argue that the FAC should be stricken as an untimely filing made without proper court approval or a stipulation by the parties. Last, Defendants argue that relief pursuant to Code of Civil Procedure section 473, subdivision (b) is not available because an application for that relief in an opposition does not provide the “notice” required by that statute and because a granting of this motion will simply leave the original August 29, 2022 Complaint as the operative pleading, as modified by the Court’s July 21, 2023 order. (Reply, pp. 2-4.)

The Court finds in favor of Plaintiff.

The Court first notes that even if Defendants failed to adequately meet and confer, this alone is not a ground for granting or denying the motion. (Code Civ. Proc., § 435.5, subd. (a)(4) [“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”].) The opposition’s unclean hands argument therefore fails.

Next, the Court notes that relief pursuant to Code of Civil Procedure section 473 is not clearly available in opposition to a noticed motion. The statutory language is admittedly vague. (Compare Code Civ. Proc., § 473, subd. (a) [“The court may …, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars,” emphasis added], with Code Civ. Proc., § 473, subd. (d) [notice not mentioned in relation to discretionary relief], and with Code Civ. Proc., § 473, subd. (d) [“The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order,” emphasis added].) However, cases that discuss relief pursuant to Code of Civil Procedure section 473 in opposition to a motion to dismiss involved circumstances where relief pursuant to section 473 was made pursuant to a noticed motion. (See Martin v. Cook (1977) 68 Cal.App.3d 799, 804, fn. 3 [Proceeding for relief from judgment, order, or other proceeding taken against movant through mistake, inadvertence, surprise or excusable neglect is proper in opposition to a motion to dismiss and may be heard and considered contemporaneously with motion to dismiss for lack of prosecution, citing Bergloff v. Reynolds (1960) 181 Cal.App.2d 349, 358-359], disagreed with in Wilcox v. Ford (1988) 206 Cal.App.3d 1170, 1178-1179 [disagreeing as to whether relief pursuant to section 473 can be requested in opposition to motion to dismiss]; see also Bergloff v. Reynolds, supra, at pp. 352 [a motion to set aside was made pursuant to section 473], 356 [discussing procedural adequacy of the notice of motion to set aside at issue].)

However, the Court is not blind to the reality that even if this Court were to grant the motion to strike on this ground, Plaintiff would thereafter be undeniably entitled to bring a motion to set aside that Order on the same ground as that set forth in the Opposition. As it includes a declaration of attorney fault, such a motion would present a mandatory basis to set it aside.

It is true that Plaintiff had no authority to file the FAC as a matter of course on August 17, 2023. “‘[A] litigant does not have a positive right to amend his pleading after a demurrer thereto has been sustained. “His leave to amend afterward is always of grace, not of right. [Citation.]” [Citation.]’ (Gautier v. General Tel. Co. (1965) 234 Cal.App.2d 302, 310 …].)”  However, courts of appeal have split on the issue of whether a court can exercise its discretion to accept an amended complaint past the deadline. (Compare Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612, with Harlan v. Dept. of Transporation (2005) 132 Cal.App.4th 868, 874-875 [Disagreeing with Leader’s conclusion that, “where the court has properly sustained a demurrer, granted leave to amend, and fixed a time for filing the amended complaint, [the court] has no discretion subsequently to extend the time without a noticed motion by the plaintiff”].)

The Court finds the Harlan case to be the better reasoned decision. Moreover, facts matter. In Leader, the plaintiff failed to file a fourth amended complaint for over a month at which point the plaintiff arrived at a status conference with a proposed fourth amended complaint.  (Leader, supra, at p. 607.) Moreover, the plaintiff had been given a stipulated continuance to file the amended complaint past the original deadline and had still failed to amend. (Id. at p. 610-611.) The Court found no abuse of discretion to dismiss the case. Such facts are a far cry from the instant case in which the complaint has been filed one week late. (See also Harlan, supra, at p. 872-873 [court exercised its discretion under Code of Civil Procedure section 425 not to strike the complaint where the second amended complaint was filed about 8 days late, saying that the “delay in filing was brief and inconsequential”].)

Nor does the case of Gitmed v. General Motors Corp. (1994) 26 Cal.App.4th 824, cited in Defendants’ reply, require that the Court grant this motion to strike. To the contrary, in that case the Court held that “the trial court abused its discretion in dismissing an action after appellant filed his amended complaint one day late.” (Gitmed, supra, at p. 825.)

The Court here exercises its discretion to deny the motion and allow the Amended Complaint to be filed one week late. In addition to Code of Civil Procedure section 475, the court has “fundamental inherent equity, supervisory, and administrative powers, as well as inherent power to control litigation before them.” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967.)

Defendants 99 Cents Stores and Bargain Wholesale’s motion is thus DENIED. 

Conclusion

Defendants 99 Cents Only Stores, LLC and Bargain Wholesale’s Motion to Strike First Amended Complaint is DENIED.