Judge: Daniel S. Murphy, Case: 22STCV19827, Date: 2022-12-07 Tentative Ruling

Case Number: 22STCV19827    Hearing Date: December 7, 2022    Dept: 32

BACKGROUND

            On June 17, 2022, Plaintiff Latina Young filed a complaint for breach of contract against Nancy Watson. On October 24, 2022, the Court sustained Defendant’s demurrer with leave to amend. On November 3, 2022, Plaintiff filed the operative First Amended Complaint (FAC). On November 16, 2022, Defendant filed the instant motion to strike the FAC on the grounds that it was not served.

LEGAL STANDARD

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part of that pleading. (Code Civ. Proc., § 435, subd. (b).) The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike (1) any irrelevant, false, or improper matter inserted in any pleading and (2) 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. (Id., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id., § 437.)

MEET AND CONFER

Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., §§ 430.41, 435.5.) The Court notes that Defendant has complied with the meet and confer requirement. (See Watson Decl.)

DISCUSSION

            There is a dispute as to whether the FAC was properly served. Plaintiff filed a proof of service by mail on November 17, 2022, but Defendant denies receiving the FAC in the mail or otherwise. (Watson Reply Decl. ¶ 3.) However, Defendant does not deny being properly served with the notice of summons and complaint for the action at the outset, and Defendant is clearly aware of the FAC. The Court finds that Defendant is sufficiently on notice of the operative pleading.

CONCLUSION

            Defendant’s motion to strike is DENIED. Defendant shall file a responsive pleading within 30 days.