Judge Barbara M. Scheper, Case 22STCV14601 2023-03-23 Tentative Ruling

Judge: Barbara M. Scheper, Case: 22STCV14601, Date: 2023-03-23 Tentative Ruling

Case Number: 22STCV14601 Hearing Date: March 23, 2023 Dept: 30

Dept. 30

Calendar No.

Care Plus Medical Group, Inc., et. al. vs. Law Offices of Michael E. Reznick, et. al., Case No. 22STCV14601

Tentative Ruling re: Defendant’s Motion to Strike

Defendant JP Morgan Chase Bank, N.A. (Chase) moves to strike portions of Plaintiffs’ First Amended Complaint (FAC). The motion is granted.

Any party may file a timely notice of a motion to strike the whole or any part of a pleading. (Code Civ. Proc., § 435, subd. (b).) The motion may seek to strike any “irrelevant, false or improper matter inserted in any pleading” or any part of the pleading “not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436.) Irrelevant allegations include allegations that are not essential to the statement of a claim, allegations that are not pertinent to or supported by the claim and demands for judgment requesting relief not supported by the allegations. (Code Civ. Proc., § 431.10, subds. (b), (c).)

On October 11, 2022, the Court sustained Chase’s demurrer to Plaintiffs’ Complaint, denying leave to amend the first, ninth, and eleventh causes of action for preliminary injunction, negligence, and breach of fiduciary duty. Plaintiffs’ First Amended Complaint (FAC) reasserts these claims against Chase despite the prior order.

Plaintiffs filed a Petition for Writ of Mandate challenging the October 11, 2022 Order, and argue that they must keep the stricken language in their FAC to preserve their future right to appeal. Plaintiffs’ argument is incorrect. When a demurrer is sustained without leave to amend, the plaintiff does not need to “continue to re-allege the ‘dead’ cause of action in future amended complaints in order to preserve the right of appeal regarding its validity.” (National Union Fire Ins. Co. of Pittsburgh, PA v. Cambridge Integrated Services Group, Inc. (2009) 171 Cal.App.4th 35, 45.) The argument is also moot given the Court of Appeals’ March 9, 2023 Order denying Plaintiffs’ petition for writ of mandate. (Simon Supp. Decl. ¶ 2, Ex. 4.)