Judge: David A. Rosen, Case: 22GDCV00077, Date: 2022-09-16 Tentative Ruling

Case Number: 22GDCV00077    Hearing Date: September 16, 2022    Dept: E

Hearing Date:  09/16/2022 – 8:30am

Case No:            22GDCV00077                             

Trial Date:       Unset

Case Name: LAS HADAS HOMEOWNERS ASSOCIATION, a California non-profit mutual benefit corporation v. ROSALES BROS ROOFING, INC, a California corporation

TENTATIVE RULING ON DEFENDANT’S MOTION TO STRIKE

Moving Party: Defendant, Rosales Bros. Roofing, Inc. (“Defendant”)

Responding Party: Plaintiff, Las Hadas Homeowners Association (“Plaintiff”)

Proof of Service Timely Filed (CRC Rule 3.1300): ok
16/21 Court Days Lapsed (CCP 1005(b)): ok
Proper Address: ok

Opposition and Reply Submitted

RELIEF REQUESTED
Defendant moves to strike the following portions of the FAC:

1.      Page 2, paragraph 3, lines 4-5 (“As detailed herein, ROSALES caused significant damage to the ASSOCIATION including claims being made by owners affected by the incident”)

2.      Page 3, para. 10, lines 10-20 (“ROSALES has also failed to indemnify and hold and hold harmless the ASSOCIATION in violation and breach of the AGREEMENT. Specifically, on or about July 27, 2021, the ASSOCIATION is informed and believes and thereon alleges that ROSALES caused water damage to the SUBJECT PROPERTY including 1959 Caminito de la Estrella, Glendale CA (the "Unit"). During the course of performing the WORK, ROSALES punctured a fire sprinkler water line that caused water to intrude into the Unit and cause damage to Owner's property and other separate interest items as well as the Owner having to sustain other damages, including personal injury, relocation, packaging of contents, etc. ROSALES' negligent acts during the course of the WORK caused significant damage to the SUBJECT PROPERTY including units, common area, personal property, etc. ROSALES has failed to indemnify and hold harmless the ASSOCIATION as required in the AGREEMENT (collectively, the "BREACHES")

3.      Page 4, para. 14, line 12 (“personal injuries”)

4.      Page 5, para. 22, lines 12-14 (“and represents its members, who are also members of the class of persons for whose protection said building codes and legal statutory standards were adopted”)

5.      Page 5, para. 22, lines 16-17 (“and its members”)

6.      Page 7, paragraphs 42-44 in their entirety (motion to strike express indemnity cause of action as a whole)

7.      Page 7, line 28 (“general”)

8.      Page 8, line 3 (“For attorney fees where authorized by contract, law or proof”)

9.      Page 8, line 6 (“general”)

PROCEDURAL
Meet and Confer
Moving party met and conferred. (See Decl. Goldstein ¶3-4.)

BACKGROUND
The instant FAC pertains to a dispute between a homeowners association and a general contractor, Rosales Bros Roofing. Plaintiff filed the FAC on 06/06/2022 alleging six causes of action for – (1) breach of written contract, (2) negligence, (3) negligence per se, (4) breach of express warranty, (5) breach of implied warranty, and (6) express contractual indemnification.

MOTION TO STRIKE LEGAL STANDARD

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc. § 436(a).) The court may also strike 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. (Code Civ. Proc. § 436(b).)  A motion to strike cannot be based upon the grounds that a complaint fails to state facts sufficient to constitute a cause of action, but instead is properly based on grounds of superfluous or abusive allegations, or improprieties in form or procedure.  (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528-29.)   

The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.  (Code. Civ. Proc. § 437; Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63 [“judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth”].

“Where the defect [in a pleading] raised by a motion to strike or by demurrer is reasonably capable of cure, ‘leave to amend is routinely and liberally granted….’” Velez v. Smith (2006-1^st Div.) 142 Cal. App. 4^th 1154, 1174-1175.   

TENTATIVE RULING
As a preliminary matter, moving party presents no basis for amalgamating Hunt v. Washington State Apple, etc. (1977) 432 U.S. 333 with Civil Code §5980 on the facts of this case.

Motion to strike portion 1 is GRANTED with leave to amend. The FAC is unclear as to whether the Plaintiff is referring to claims made by the owners against the HOA or speculating about claims being made by someone against someone else.

Motion to strike portion 2 is GRANTED with leave to amend. The FAC is vague as to what Plaintiff asks Rosales to hold Plaintiff harmless from or for and vague as to the indemnify sought.

Motion to strike portion 3 is GRANTED with leave to amend because of vagueness and ambiguity because it is unclear if Plaintiff is seeking recovery for or indemnity for personal injuries of its members or, impermissibly, for personal injuries of the HOA.

Motion to strike portion 4 is DENIED.

Motion to strike portion 5 is DENIED.

Motion to strike portion 6 is GRANTED with leave to amend. It is unclear what the HOA is seeking indemnity for.

Motion to strike portion 7 is GRANTED with leave to amend. It is unclear if Plaintiff is referring here to indemnification for someone else’s general damages, or is seeking, apparently impermissibly, general damages as an HOA.

Motion to strike portion 8 is DENIED.

Motion to strike portion 9 is DENIED.

Plaintiff is to electronically serve and file a clearly pled Second Amended Complaint within 20 days.