Judge: Colin Leis, Case: 18STCV08209, Date: 2022-08-15 Tentative Ruling

Case Number: 18STCV08209    Hearing Date: August 15, 2022    Dept: 3

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTHEAST DISTRICT

DEPARTMENT 3

MOVING PARTY:                Defendants L.B.G.D. Investment Inc. and Bing Liu

RESPONDING PARTY:       N/A

Defendants L.B.G.D. Investment Inc. and Bing Liu’s Motion to Strike the Second Amended Complaint in Its Entirety

The court considered the moving papers filed in connection with this motion. No opposition was filed.

BACKGROUND

            Plaintiffs America Fuji Healthware Inc. (“AFH”) and Cui Ping Ji (“Ji”) filed this premises liability action on December 13, 2018. The First Amended Complaint (“FAC”) was filed on March 1, 2019, asserting causes of action for general negligence, premises liability, and products liability.[1] This action arises out of a fire that occurred on December 15, 2016 at the commercial real property located at 301 E. Garvey Ave., Monterey Park, California 91754 (the “Premises”). On October 29, 2021, Plaintiffs filed amendments to the complaint, naming Wendy Sau dba Pho LTK Restaurant aka Phot Ly Thuong Kiet (“Sau”) in place of Doe 1 and L.B.G.D. Investment Inc. and Bing Liu (jointly, “LBGD”) in place of Doe 2.

            On May 26, 2022, the court issued an order sustaining LBGD’s demurrer to the first and third causes of action of the FAC, with leave to amend, and overruling the demurrer to the second cause of action of the FAC. The court ordered Plaintiffs to file an amended complaint within 20 days of the date of the order, making the deadline to file an amended complaint June 15, 2022. On June 16, 2022, at approximately 1:40 a.m. Plaintiffs served, and at 1:53 a.m. filed, a Second Amended Complaint (“SAC”).

            On June 29, 2022, Sau’s demurrer to the FAC came on for hearing. The court deemed Sau’s demurrer moot in light of the fact that the SAC had been filed.

LBGD now moves to strike the SAC in its entirety for being untimely.

LEGAL STANDARD

A court may strike any “irrelevant, false or improper matter inserted in any pleading” or any part of a 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.) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.) 

DISCUSSION

Although LBGD is correct that the filing of the SAC was untimely, the court exercises its discretion to deny the motion to strike.

CONCLUSION

Based on the foregoing, the court denies LBGD’s motion to strike the SAC.

LBGD is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED:  August 15, 2022

_____________________________

Colin Leis

Judge of the Superior Court