Judge: Anne Richardson, Case: 23STCV23749, Date: 2024-05-21 Tentative Ruling

Case Number: 23STCV23749    Hearing Date: May 21, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

I. Background

A. Pleadings

Plaintiff Mecca Morgan sues Defendants Alpha Beta Company dba Ralphs (ABC), the Kroger Company (Kroger), Dan Cronin, and Does 1 through 10 pursuant to a January 31, 2024, First Amended Complaint alleging claims of (1) Discrimination, (2) Battery, (3) Negligent Intentional Infliction of Emotional Distress, and (4) Violation of California Civil Code Section 52.1, Interference with the Exercise of Civil Rights.

The claims arise from the following allegations. While visiting a Ralphs store as a customer, Plaintiff Mecca Morgan, an African American woman, was discriminated against by store employees. Specifically, Plaintiff Morgan was stopped inside the store by a Ralphs employee and then a security guard that accused Plaintiff of stealing, demanding proof of purchase. Plaintiff Morgan confirmed that she had a receipt but protested that she was not going to let the employees violate her rights, recording the incident as it occurred. Plaintiff Morgan attempted several times to use an exit to leave the store but had her path blocked by the store’s security guard. As a result, Plaintiff Morgan walked to a different exit in the store to leave the premises. However, as Plaintiff attempted to exit the store, she was attacked by the store manager, Ralph Cronin. The pleadings do not describe the alleged battery other than to generally describe offensive and unwelcome touching. These experiences have resulted in economic and non-economic damages, including affecting Plaintiff’s home broker/agent profession and income.

On February 6, 2024, Plaintiff filed a proof of service reflecting a February 5, 2024, service of the FAC on counsel for ABC by regular and electronic mail.

On March 1, 2024, ABC filed its Answer to the FAC.

B. Motion Before the Court

On April 2, 2024, Plaintiff filed a motion to strike affirmative defenses from ABC’s Answer. The motion arises from various arguments challenging the sufficiency of the streamlined defenses appearing in ABC’s Answer.

On May 8, 2024, ABC filed an opposition to Plaintiff Morgan’s motion. The opposition was filed twice. The first copy of the opposition attached a proof of service showing service on a person other than Plaintiff Morgan. The second copy of the opposition is identical to first opposition except that it: (1) capitalized Defendants’ names in the caption; and (2) attached the correct proof of service.

On May 13, 2024, Plaintiff filed a reply to ABC’s opposition.

On May 17, 2024, two court days prior to this hearing, Plaintiff Morgan filed a Second Amended Complaint that has been received but not filed by the Clerk.

ABC’s motion is now before the Court.

II. Sua Sponte Order Striking Second Amended Complaint

A. 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)).

B. Analysis

“A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike. A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties.” (Code Civ. Proc., § 472, subd. (a).)

Here, Plaintiff filed a proposed Second Amended Complaint (SAC) on May 17, 2024. Plaintiff Morgan did not obtain a Court order that allowed her to file the amended pleading. Neither does the proposed Second Amended Complaint nor the record show that the parties agreed to permit Plaintiff Morgan to file an amended pleading. And ABC had answered the FAC as of March 1, 2024, well before Plaintiff Morgan filed her proposed SAC. Plaintiff Morgan therefore did not have the right to file an amended pleading as to ABC without first filing a motion for leave to amend. At most, Plaintiff Morgan could have amended the pleadings as to any Defendant that has not answered the FAC. (Cf. Barton v. Kahn (2007) 157 Cal.App.4th 1216, 1219-1221 [Interpreting Code Civ. Proc., § 473 and holding that one defendant’s filing of an answer did not divest the plaintiff of the right to amend the complaint with respect to the causes of action brought against other defendants who had demurred to the same pleading].) Yet, a comparison of the proposed SAC and the operative FAC shows that the proposed SAC does not contain any new allegations, let alone new allegations against ABC’s co-Defendants. The only differences between the proposed SAC and the operative FAC are that the proposed SAC adds two things: (1) the proposed SAC identically states the General Allegations, Causes of Action, and Prayer twice, with the General Allegations, Causes of Action, and Prayer from the FAC being identical; and (2) the proposed SAC attaches the summons and civil cover sheet for this case, which were not attached to the FAC. It is thus not clear why Plaintiff filed the proposed SAC if she did not amend the substance of the pleadings in any consequential fashion.

Accordingly, because the proposed SAC was not filed as a matter of right, it is a pleading that was not filed in conformity with the laws of California, for which reason the Court STRIKES the May 17, 2024, Second Amended Complaint. (Code Civ. Proc. § 436, subds. (a), (b).)

III. Plaintiff Morgan’s Motion to Strike: DENIED.

B. Legal Standard and Court’s Determination

Referring to the legal standard on motions to strike set forth above, the Court finds in favor of Defendant ABC.

The Court begins by noting that even if Plaintiff’s motion is two days late, as argued out by the Defendant ABC, the Court may and will consider the motion on the merits.

First, Plaintiff points out that she filed the motion on the Tuesday following Cesar Chavez Day, and thus the motion is not late at all. (Cal. Rules of Court, rule 1.10.) Second, even if it were, the 30-day requirement is not mandatory, where the words ‘may’ file a motion to strike connotes a permissive standard. (See Code Civ. Proc., § 435, subd. (b)(1); cf. McAllister v. County of Monterrey (2007) 147 Cal.App.4th 253, 280 (McAllister) [applying above permissive reasoning to a late demurrer].)

Second, case law holds that “[t]here is no absolute right to have a pleading stricken for lack of timeliness in filing where no question of jurisdiction is involved, and where … the late filing was a mere irregularity,” such that “the granting or denial of the motion is a matter [that] lies within the discretion of the court.” (McAllister, supra, at pp. 281-282, citations omitted.)

However, the Court next determines that the permissive standard in interpreting the sufficiency of answers make the Answer here sufficient for pleading purposes.

The California Supreme Court has discussed the sufficiency of answers and explained that where a defect in pleading does not affect substantial rights, it “is to be disregarded.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240 (Harris).) In Harris, the California Supreme Court determined that the City’s answer was sufficient where it pleaded that “‘[a]ny alleged adverse employment actions of which plaintiff complains … were not based on plaintiff’s gender and/or sex, pregnancy or any other alleged discriminatory practice, but instead were based on one or more legitimate nondiscriminatory reasons. Nor were any of the employment actions of defendant taken under pretext.” (Ibid.) The Supreme Court reasoned that this answer had “put Harris on notice that the City intended to defend on the basis that it had not discriminated against her and had a legitimate reason for discharging her.” (Ibid.)

Here, the affirmative defenses raised in ABC’s Answer are comparable to the above quoted affirmative defense from Harris. Moreover, the defenses are clear enough to put Plaintiff on notice of the defenses to be raised by ABC. And even if some defenses are inconsistent with other defenses, this is not a ground to grant Plaintiff’s motion. (Cf. South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 733-734 [For purposes of a demurrer, each defense in the answer must be considered separately without regard to any other defense, and thus, a separately stated defense that is sufficient in form and substance when viewed in isolation does not become insufficient when, on looking at the answer as a whole, that defense appears inconsistent with other parts of the answer].)

As a result, following Harris’s instruction, the Court determines that the Answer here is sufficiently pleaded.

Plaintiff Morgan’s motion is thus DENIED. 

IV. Conclusion

Plaintiff Mecca Morgan’s Motion to Strike Affirmative Defenses is DENIED.