Judge: Frank M. Tavelman, Case: 19BBCV00959, Date: 2023-05-16 Tentative Ruling

SUBMITTING
ON THE TENTATIVE

The Court tries to post tentative rulings prior to any
hearing on many matters, but not all.  If
the parties wish to submit on the tentative ruling and avoid a court
appearance, all counsel must confer and agree to do so.   Each counsel must contact the court and
advise they are submitting on the matter, that they have spoken to opposing
counsel who has indicated they too are submitting and will be calling the
court. All submitting counsel must call Dept A by 9:00 a.m. on the day of the
hearing and state that all parties will submit on the tentative ruling or in lieu
may indicate the party is submitting during calendar check-in and notice of the
ruling must be served as indicated in the tentative. If any party declines to
submit on the tentative ruling, then no telephone call is necessary, and all
parties should appear at the hearing in person or remotely.

Case Number: 19BBCV00959    Hearing Date: May 16, 2023    Dept: A

DEMURRER & MOTION TO STRIKE

MP:     Miriel Thompson (Plaintiff/ Cross-Defendant)

RP:     Judah Friedman (Defendant/Cross-Complainant)

ALLEGATIONS:

On October 24, 2019, Miriel Thompson (“Thompson”) filed suit against Judah Friedman (“Friedman”) for Friedman’s alleged failure to repay loans Thompson made to him from 2015 to 2017. On November 21, 2019, Friedman filed a Cross-Complaint against Thompson containing causes of action for (1) Defamation, (2) Conversion, (3) Fraud, and (4) Assault. On December 20, 2019, Thompson filed her answer to the Cross-Complaint generally denying each allegation.

Years have passed wherein various attorneys have been substituted and continuances have been requested. On December 30, 2022, Thompson filed her First Amended Complaint (“FAC”) after her motion to amend her original complaint was granted. On February 1, 2023, Freidman answered.

On February 14, 2023, Friedman filed a First Amended Cross-Complaint (“FAXC”). The FAXC contains causes of action for (1) Defamation, (2) Civil Theft, (3) Tortious Interference, and (4) Intentional Infliction of Emotional Distress (“IIED”). Thompson filed a motion to strike the FAXC, and if not struck, a demur to each cause of action in the FAXC and a motion to strike the FAXC.

HISTORY:

On April 3, 2023, Thompson filed her demurrer and motion to strike. On May 1, 2023, Friedman filed an untimely opposition to the demurrer. Nonetheless it will be considered.

On May 11, 2023, Thompson’s motions came on for hearing. The Court, having noticed no meet and confer declarations were filed with Thompson’s demurrer or motion to strike, continued the matter to May 16, 2023. The Court ordered parties to meet and confer with respect to the motion.

JUDICIAL NOTICE:

Thompson requests judicial notice be taken of Friedman’s original Cross-Complaint and Thompson’s original answer.

Evidence Code §452(d) permits the Court to take notice of records of the courts of the state of California. However, while courts may take judicial notice of court records, the truth of matters asserted in such documents is not subject to judicial notice. (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.)

The Court grants Thompson’s request.

ANALYSIS:

I.                    LEGAL STANDARDS

Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer, such as words, phrases, and prayers for damages. (See C.C.P. §§ 435, 436, and 437.) The proper procedure to attack false allegations in a pleading is a motion to strike. (C.C.P. § 436(a).) In granting a motion to strike made under C.C.P. § 435, “[t]he court may, upon a motion made pursuant to Section 435 [notice of motion to strike whole or part of complaint], or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (C.C.P. § 436(a).) Irrelevant matters include immaterial allegations that are not essential to the claim or those not pertinent to or supported by an otherwise sufficient claim. (C.C.P. § 431.10.)

The court may also “[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.” (C.C.P. § 436 (b).)

II.                 MEET & CONFER

Code of Civil Procedure (“C.C.P.”) § 430.41(a) requires that the demurring party meet and confer with the party who filed the pleading that is subject to the demurrer at least 5 days before the date the responsive pleading is due, by telephone or in person, for the purpose of determining if the parties can resolve the objections to be raised in the demurrer. The demurring party must file and serve a declaration detailing their meet and confer efforts.

C.C.P. § 435.5(a) provides that before filing a motion to strike, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.

Form CIV-140 was filed with the motion by Sara Peters, Esq. advising that the parties failed to meet and confer in good faith.   The Court put the matter over until May 11, 2023, and the parties were ordered to meet and confer.   No additional declaration was filed, but the parties advised the Court on May 11, 2023 that they met and conferred.   As such, the matter was put over until May 17, 2023 for the Court to rule on the underlying motion.

Thompson’s demurrer and motion to strike contained no meet and confer declaration. However, the parties have subsequently met and conferred pursuant to the Court’s order.

III.              MERITS

Motion to Strike Entire FAXC

Thompson first moves to strike the entirety of the FAXC on grounds Friedman did not seek leave of the court to file an amended pleading.  

C.C.P. § 472(a) provides:

A party may amend its pleading once without leave of the 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 by the parties. The time for responding to an amended pleading shall be computed from the date of service of the amended pleading.

Thompson argues Freidman is required to seek leave of the court to amend because she rendered an answer to the original Cross-Complaint on December 20, 2019. Friedman argues Thompson’s filing of an amended complaint reset the matter, rendering his amendment in compliance with C.C.P § 472(a). Friedman points to no legal authority for his argument other than C.C.P. §428.50(a), which provides:

A party shall file a cross-complaint against any of the parties who filed the complaint or cross-complaint against him or her before or at the same time as the answer to the complaint or cross-complaint.

The Court finds C.C.P. § 428.50(a) is silent as to the amendment of a cross-complaint which has already been filed. Friedman’s Cross-Complaint was required by C.C.P. § 428.50(a) to be filed concurrent with his answer to Thompson’s original Complaint. The statute does not require a renewal of Friedman’s Cross-Complaint simply because he renders an answer to Thompson’s FAC.

Friedman filed his Cross-Complaint and Thompson thereafter filed her answer. The law is clear that if Friedman wishes to amend his Cross-Complaint, he may only do so by seeking leave to amend from the Court.

Friedman further argues his amendment should be allowed because of the liberal amendment of pleadings standard. C.C.P. § 473(a)(1) provides that a trial court may, in its discretion, allow amendments in furtherance of justice. Judges are generally liberal in permitting amendments to pleadings so long as the statute of limitations has not expired, and the opposing party will not be prejudiced by the amendment. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.) However, this liberal standard does not allow Friedman to subvert the requirement he seek leave of the Court to amend as per C.C.P. § 428.50(a). Friedman cannot file his FAXC without leave and retroactively claim he is justified in doing so because there is a liberal standard for the amendment of pleadings.  To do so would prohibit the Plaintiff from raising objections to the cross complain.

The requirements for a motion to amend are enumerated in California Rules of Court Rule 3.1324. These requirements include providing a copy of the proposed changes to the pleadings and a declaration as to why the amendment is necessary and proper. Here, none of these elements are present. The Court is left to extrapolate which changes Friedman made and why they are important. Friedman may be able to justify why amendment is necessary, but he must do so through the appropriate process to assure all parties are provided an opportunity to be heard.

As such, the motion to strike the entirety of the FAXC is GRANTED. Pursuant to C.C.P. § 436(b), the Court orders Friedman’s FAXC stricken and reinstates the Cross-Complaint as operative.

Demurrer

As the Court grants the motion to strike the FAXC, Thompson’s demurrer is moot.

RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Miriel Thompson’s Demurrer and Motion to Strike came on regularly for hearing on May 16, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION TO STRIKE THE ENTIRETY OF FRIEDMAN’S AMENDED CROSS-COMPLAINT IS GRANTED.

FRIEDMAN’S ORIGINAL CROSS-COMPLAINT IS REINSTATED AS OPERATIVE.

THE DEMURRER IS MOOT.