Judge Gail Killefer, Case Number: 23STCV26839, Date: 2024-01-31 Tentative Ruling

On November 1, 2023, Regency Centers, LP (“Plaintiff”) filed a Complaint against Alankar Verma, Megna Holdings, Inc., Mahmud Ulkarim, Monira Ulkarim, and Does 1 to 20. The Complaint alleges two causes of action for breach of contract and breach of guaranty.

On January 3, 2024, Defendant Alankar Verma filed a motion to strike the Plaintiff’s Complaint.[1] On January 18, 2024, the Plaintiff filed opposing papers. The matter is now before the court.

motion to strike[2]

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 thereof. (CCP § 435(b)(1); CRC, rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP § 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)¿¿¿¿¿

“Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿¿¿

The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452(c), (d), and (h).) “Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning.” (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.)

1) Exhibit 1: A copy of Resolution No. 2020-049, a Resolution of the City of thousand Oaks rescinding and restating certain emergency orders. Resolution 2020-049 continued a temporary moratorium on interest relating to water and waste water utility bills, and business licenses on page 5, articles 5(a) and (g) of the Resolution.

Defendant Alankar Verma (“Verma”) seeks to strike the reference to “interest” in the Complaint on Page 6, Paragraph 2. Defendant Verma states that the City of Thousand Oaks, Resolution No. 2020-011, has a moratorium that prohibits the collection of interest for commercial tenancies for the portion of the tenancy at issue. Defendant Verma further asserts that Resolution No. 2020-049 rescinded Resolution No. 2020-011 as of November 11, 2020.

Plaintiff asserts that it is entitled as a matter of law to recover pre-judgment interest. (Civ. Code, §§ 3287, 3289, 3300, and 3302.) Moreover, Plaintiff asserts that the Lease and guarantees at issue specifically allow interest to accrue on any money not paid. (Compl. Ex. 1 §§ 1.1(l), 4.7, and 18.1(f).) Lastly, Plaintiff asserts that Resolution No. 2020-011 did not prohibit Plaintiff from charging or collecting interest on unpaid rent. Plaintiff argues that even if Resolution 2020-011 prohibited the charging of and collection of interest, it only applies to a “portion of the period at issue” and does not bar interest in its entirety. Thus, the factual question would be how much interest Plaintiff can charge and not whether Plaintiff is entitled to interest.

As neither party has provided a copy of Resolution 2020-011, the court cannot determine if the Plaintiff is prohibited from charging interest. Accordingly, Defendant Verma has failed to meet his burden of showing that a defect exists on the face of the Complaint. Moreover, Defendant Verma failed to submit a declaration showing that he attempted to meet and confer with Plaintiff’s counsel prior to filing this demurrer. (CCP § 430.41.)

For the reasons set forth above, Defendant Verma’s motion to strike is denied.

[1] The court notes that Plaintiff filed three oppositions to motions to strike by Defendants Monira Ulkarim, Mahmud Ulkarim, and Megna Holdings, Inc., but no motions to strike were filed by those Defendants.

[2] Defendant Verma has failed to comply with the meet and confer requirement outlined in CCP § 435.5. “Any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” (CCP § 430.41(a)(4).) The court addresses the motion on its merits.