Judge: Edward B. Moreton, Jr., Case: 22SMCV00209, Date: 2022-12-12 Tentative Ruling

Case Number: 22SMCV00209    Hearing Date: December 12, 2022    Dept: 205

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

MOVING PARTY:                    Defendant Yuan Shi

RESPONDING PARTY:         Plaintiff David Carter

BACKGROUND

This case arises from a dispute between two former partners in a venture capital business called Zuma Partners.  Compl. ¶2.  Plaintiff David Carter claims that Defendant Yuan Shi misappropriated his name, photograph and likeness to launch a new venture capital fund called AI List.  Compl. ¶3.  Shi allegedly raised funds for his new fund by using Carter’s identity to raise money from many of the same investors who had invested with Zuma Partners.  Compl. ¶3.  The complaint alleges claims for (1) violation of Civ. Code §3344, (2) invasion of privacy based on misappropriation of identity, (3) unjust enrichment and (4) injunctive relief. 

This hearing is on Defendant’s motion to strike Plaintiff’s first amended complaint (“FAC”).  Defendant argues that the FAC was filed without leave and after the deadline for an opposition to a demurrer and is accordingly, untimely under Code Civ. Proc. §427(a).   

LEGAL STANDARD

The court may, upon 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, subd. (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, subd. (b).) The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Code Civ. Proc., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

DISCUSSION

Code Civ. Proc. §427(a) states: “A party may amend its pleading once without leave of court at any time before the answer, demurrer or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike.  A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation of the parties.”

Here, Defendant filed a demurrer on April 27, 2022.  The hearing on the demurrer was initially scheduled for September 13, 2022.  The Court rescheduled the hearing to September 16, 2022 but stated that any “opposition and reply are pursuant to the date of September 13, 2022.”  Accordingly, any opposition was due 9 court days before September 13, or by August 31, 2022.  Plaintiff filed his FAC on September 1, 2022 which was after the deadline for the opposition to the demurrer.  There was no stipulation between the parties for Plaintiff to file the FAC late.  Accordingly, Plaintiff required leave to amend, which was not sought or granted.  However, given the FAC was filed only a day late and the policy favoring resolution of cases on the merits, the Court will exercise its discretion to allow the late amendment.  (Harlan v. Dep’t of Transp. (2005) 132 Cal.App.4^th 868, 873 (“While the court had discretion to require a noticed motion before permitting [plaintiff] to file the second amended complaint late, we think it also had discretion under these circumstances to accept the filing without a noticed motion.”).

CONCLUSION

Based on the foregoing, the Court DENIES Defendant’s motion to strike the first amended complaint.

IT IS SO ORDERED.

DATED: December 13, 2022                                              ___________________________

Edward B. Moreton, Jr.

Judge of the Superior Court