Judge: Daniel M. Crowley, Case: 21STCV03391, Date: 2022-08-24 Tentative Ruling
Case Number: 21STCV03391 Hearing Date: August 24, 2022 Dept: 28
Defendant the Hertz Corporation’s Motion to Strike the First Amended Complaint
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On January 27, 2021, Plaintiff Haran Jackson (“Plaintiff”) filed this action against Defendants the Hertz Corporation (“Hertz”), Lyft Inc. (“Lyft”) and Eme Nkugba (“Nkugba” for motor vehicle negligence, general negligence, products liability and negligence per se.
On November 4, 2021, Lyft filed an answer.
On November 18, 2021, Hertz filed a demurrer with motion to strike. On December 16, 2021, the demurrer was sustained, with 20 days leave to amend.
On January 3, 2022, Plaintiff filed the FAC for motor vehicle negligence, general negligence and products liability. Plaintiff did not file a proof of service with the FAC.
On January 11, 2022, Hertz filed an answer to the original complaint.
On July 27, 2022, Hertz filed a Motion to Strike the First Amended Complaint to be heard on August 24, 2022.
Trial is currently scheduled for May 3, 2023.
PARTY’S REQUESTS
Hertz requests the Court strike the FAC and make the original complaint the operative pleadings as Plaintiff has failed to serve the FAC for over 6 months.
LEGAL STANDARD
“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.” (CCP § 437(a).) The court looks to whether “the complaint alleges facts sufficient to state a cause of action or discloses a complete defense.” (Ivanoff, supra, 9 Cal.App.5th p. 725.) The court “assume[s] the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken.” (Id.) “The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)
CCP 471.5 provides “If the complaint is amended, a copy of the amendments shall be filed, or the court may, in its discretion, require the complaint as amended to be filed, and a copy of the amendments or amended complaint must be served upon the defendants affected thereby.”
CRC Rule 3.110 provides “The complaint must be served on all named defendants and proofs of service on those defendants must be filed with the court within 60 days after the filing of the complaint.”
DISCUSSION
Although Plaintiff filed the First Amended Complaint with the Court, Plaintiff never provided proof of service on Defendants. Plaintiff is obligated to serve and file proof of service on Defendants for the FAC within 60 days of filing the new operative pleadings. It is now 7 months later, and Plaintiff has yet to serve said FAC. As Plaintiff failed to both serve and file proof of service, the Court finds there is good reason to strike and grants the motion.
CONCLUSION
Defendant the Hertz Corporation’s Motion to Strike the First Amended Complaint is GRANTED. The FAC is stricken and the initial complaint is considered the operative pleadings.
Moving party is ordered to give notice of this ruling.
Moving Party is ordered to file the proof of service of this ruling with the Court within five days.
The parties are directed to the header of this tentative ruling for further instructions.