Judge: Christopher K. Lui, Case: 22STCV34071, Date: 2024-06-11 Tentative Ruling

Case Number: 22STCV34071    Hearing Date: June 11, 2024    Dept: 76

Plaintiff alleges that Defendants fraudulently manipulated and falsified data to induce Plaintiff into investing money in research and development pipelines (product candidates)  for the treatment of Hepatitis B, and coronavirus and influenza viruses.

Defendants G Tech Bio LLC and Seraph Research Institute filed a Cross-Complaint against Cross-Defendant Renovaro Biosciences, Inc. for declaratory relief.

Plaintiff/Cross-Defendant Renovaro Biosciences Inc. moves to strike portions of the Cross-Complaint.

TENTATIVE RULING

Plaintiff/Cross-Defendant Renovaro Biosciences Inc.’s motion to strike  ¶¶ 5 – 15 of the Cross-Complaint is GRANTED without leave to amend.

Cross-Defendant Renovaro Biosciences Inc. is to answer the remaining allegations of the Cross-Complaint within 10 days.

ANALYSIS

Motion To Strike

Meet and Confer

The Declaration of Christopher J. Valente reflects that Cross-Defendant’s counsel satisfied the meet and confer requirement set forth in Civ. Proc. Code, § 435.5.

Discussion

Plaintiff/Cross-Defendant Renovaro Biosciences Inc. moves to strike the following portions of the Cross-Complaint: ¶¶ 5 – 15 of the Cross-Complaint, as irrelevant.

The court may, upon a motion made pursuant to Section 435, 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.

     (Civ. Proc. Code, § 436(a).)

The motion to strike ¶¶ 5 – 15 is GRANTED without leave to amend. These allegations pertain to conduct occurring up to May 2022. This is irrelevant to the declaratory relief action which relies on conduct which occurred from June 2022 forward to justify declaratory relief that the Framework, HBV, and Covid/Influenza Agreements have been terminated, and that the Covid Agreement is non-exclusive.

Declaratory relief is not available to address completed past wrongs: 

"The purpose of a judicial declaration of rights in advance of an actual tortious incident is to enable the parties to shape their conduct so as to avoid a breach. '[D]eclaratory procedure operates prospectively, and not merely for the redress of past wrongs. It serves to set controversies at rest before they lead to repudiation of obligations, invasion of rights or commission of wrongs; in short, the remedy is to be used in the interests of preventive justice, to declare rights rather than execute them.' " (Citation omitted.)

(Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 618 [bold emphasis added].)

          If Cross-Complainants wished to file an amended Cross-Complaint before the hearing, they should have done so within the time permitted in Civ. Proc. Code, § 472(a) and § 1005(b), i.e., nine court days before the hearing date, which would be May 29, 2024. The opposition was filed on June 3, 2024. While the Court considered the late opposition—and thus Cross-Defendant’s request to strike the late-filed opposition is DENIED—the proposed amended Cross-Complaint is untimely submitted.

Cross-Defendant Renovaro Biosciences Inc. is to answer the remaining allegations of the Cross-Complaint within 10 days.