Judge: Curtis A. Kin, Case: 22STCP04241, Date: 2023-05-18 Tentative Ruling

Case Number: 22STCP04241    Hearing Date: May 18, 2023    Dept: 82

            Respondent R&T Management, Inc. (“Respondent” or “R&T”) moves to strike the entire petition for writ of mandate filed by Petitioner Jimmi Lewis (“Petitioner”).

Petitioner’s Evidentiary Objections to Declaration of Damon Mircheff

(1)  Entire Declaration – Overruled.

(2)  Paragraph 4 – Sustained.

(3)  Paragraph 5 – Overruled. 

Relevant Procedural History

            On December 1, 2022, Petitioner filed a petition for writ of mandate to enforce member’s right to inspect records of a limited liability company against Respondents VOI Insurance Solutions, LLC (“VOI”) and R&T Management, Inc.  On January 9 and 10, 2023, VOI filed an answer and cross-complaint. 

            On February 15, 2023, Petitioner filed a verification of the petition.

            On February 17, 2023, Respondent R&T filed the instant motion to strike and a meet and confer declaration pursuant to CCP section 435.5.  The court has received Petitioner’s opposition to the motion to strike and R&T’s reply. 

Legal Standard – Motion to Strike

Upon motion, the court may “strike out any irrelevant, false, or improper matter inserted in any pleading” or “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.  (CCP § 436.)  As with a demurrer, “[t]he 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.”  (CCP § 437.) 

Courts take a “cautious” approach to motions to strike.  “We have no intention of creating a procedural ‘line item veto’ for the civil defendant.”  (PH II, Inc. v. Superior Court (1995) 33 Cal. App. 4th 1680, 1683.)  “Judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.”  (Clauson v. Sup. Ct. (1998) 67 Cal.App.4th 1253, 1255.)

Analysis

Verification of the Petition

            Respondent contends that the petition was not verified as required by CCP section 1086 because the verification was filed 77 days after the petition was filed.  (Mot. 5.)  A petition for writ of mandate must be verified.  (CCP § 1086.)  However, Respondent cites no authority stating that a petition is defective simply because the verification page was signed and filed sometime after the petition.  Although the petition potentially might have been subject to a motion to strike before the verification was filed, the petition is now verified as required by CCP section 1086. 

            Respondent’s reliance on Krueger v. Superior Court (1979) 89 Cal.App.3d 934 is misplaced.  (Mot. 5.)  In Krueger, the petition on its face was clearly not verified properly, as the Court observed “[t]he purported verification is dated December 3, 1978; the petition is dated December 22.”  (Kreuger, 89 Cal.App.3d at 939.)   The Court of Appeal thus held that “[i]t defies belief that the person verifying a document on December 3 could know of his own knowledge what its content would be some 19 days later. A fatally defective verification ‘is treated as a failure to verify.’” (Ibid.)  Here, by contrast, the petition was verified after it was filed.  Petitioner could have read the petition and known its contents when he signed the verification.  Krueger does not support Respondent’s position that the verification is improper and that the petition must accordingly be stricken. 

Further, contrary to Respondent’s assertion, Petitioner did not make any amendments to the allegations of the petition that would require an entirely new pleading pursuant to CCP section 472 when it filed its verification.  (Mot. 5.)  Respondent cites no authority that supports such position.  Moreover, as to Respondent R&T, the verification was filed before the responsive pleading.  Thus, pursuant to CCP section 472(a), Petitioner was permitted to amend as a matter of right as to R&T, even though VOI had already answered the petition.  (See Barton v. Khan (2007) 157 Cal.App.4th 1216, 1220-21 [one defendant’s filing of an answer does not divest plaintiff of right to amend complaint as to other defendants pursuant to CCP section 472].) 

            In reply, Respondent makes entirely new arguments concerning the verification.  Specifically, Respondent contends that Petitioner’s electronic verification does not comply with CCP section 2015.5 and California Rules of Court, Rule 2.257.  (Reply 2-4.)  “The salutary rule is that points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before.”  (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.)  Respondent does not show good cause to raise these arguments for the first time in reply.  The electronic verification was filed before Respondent filed the motion to strike.  Indeed, Respondent submitted the verification at issue with its initial motion papers.  (See Mircheff Decl. ¶ 6, Ex. 5.)  Thus, all arguments concerning the verification could have been raised in the motion with the exercise of reasonable diligence.  Because there is no good cause, the court does not consider Respondent’s new reply arguments based on section 2015.5 and Rule 2.257. 

Rule 8.486(a) Does Not Apply to this Writ Action

            Respondent contends that “the Petition is still substantively defective because Petitioner failed to file the supporting memorandum of points and authorities” required by California Rules of Court, Rule 8.486(a).  (Mot. 6.)  Rule 8.486 is part of Title 8, Chapter 7 of the Rules of Court, titled “Writs of Mandate, Certiorari, and Prohibition in the Supreme Court and Court of Appeal.”  Rule 8.485(a) states, in pertinent part, that “the rules in this chapter govern petitions to the Supreme Court and Court of Appeal for writs of mandate, certiorari, or prohibition, or other writs within the original jurisdiction of these courts.”  Rule 8.486 clearly does not apply to petitions for writ of mandate filed in the trial court.  Petitioner was not required to file a memorandum with the petition in accordance with the rule cited by Respondent.

Respondent Improperly Relies on Extrinsic Evidence in the Motion to Strike

Respondent contends that “R&T Management ceased being a manager of VOI as of December 2021” and, therefore, was not properly named as a party that could produce LLC records to Petitioner.  (Mot. 6-7.)  In support, Respondent relies on hearsay evidence from the meet and confer declaration of attorney Damon Mircheff.  (Id. [citing Mircheff Decl. ¶ 4, Ex. 3].)  Petitioner disputes Respondent’s factual contentions.  (Oppo. 5-7 and Donovan Decl.)  A motion to strike is “not the appropriate procedure for determining the truth of disputed facts.”  (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113-114.)  A motion to strike “tests the pleadings alone and not the evidence or other extrinsic matters.”  (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747; CCP § 437.)  Respondent’s factual contention that it is no longer a manager for VIO cannot be determined from the face of the petition.  Accordingly, Respondent’s argument must fail on a motion to strike.  Respondent may raise such issues by dispositive motion or in the opposition briefing for trial on the writ petition. 

Attorney Fees

            Petitioner “requests legal fees as provided by law according to proof.”  (Oppo. 7.)  Petitioner cites no statutory authority, contractual provision, or other basis for attorney fees.  The request for fees is denied.

Conclusion

The motion to strike is DENIED.