Judge: Gary I. Micon, Case: PC058369, Date: 2025-02-07 Tentative Ruling
Case Number: PC058369 Hearing Date: February 7, 2025 Dept: F43
Dept.
F43
Date:
02-07-25
Case
# PC058369, Dewelt, LLC v. Robinson, et al.
Trial
Date: 07-28-25
MOTION TO STRIKE CROSS-COMPLAINT
MOVING
PARTY: Plaintiff/Cross-Defendant Dewelt LLC
RESPONDING
PARTY: Defendant/Cross-Complainant Roadrunner Land & Homes, LLC
RELIEF
REQUESTED
Ordering
striking request for punitive damages and all related language and attorney’s
fees and costs from the Cross-Complaint.
RULING: Motion is denied.
SUMMARY
OF ACTION
This
action arises from competing ownership claims to property located at 30141
Lexington Dr., Val Verde, CA. Erik
Lassman and Jim V. Robinson owned the property as joint tenants with rights of
survivorship. In April 2011, Erik
Lassman, as CEO and owner of Dewelt, LLC, transferred his entire joint tenancy
interest to Dewelt, LLC (Dewelt). On May
23, 2011, Jim V. Robinson transferred his joint interest to defendant Road
Runner Land & Homes, LLC, a Nevada Corporation. Road Runner Nevada’s corporate status had been
permanently revoked.
On
November 4, 2021, the court entered an Order After Judgment which directed Road
Runner to convey the subject property to Dewelt. On February 9, 2022, Road Runner conveyed the
property to Dewelt, which then conveyed the property to Dennis McConnell on the
very same day for just $10,000, which Road Runner alleges was well below market
value. The Court of Appeal later
reversed the default judgment as to Road Runner. This also reversed the Order After Judgment
for the conveyance to Dewelt.
Cross-complainant
Road Runner Land & Homes, LLC, a Wyoming LLC, filed a cross-complaint
against Dewelt on October 17, 2023 alleging two causes of action for
cancellation of instrument and conversion. Road Runner Wyoming filed its cross-complaint
in order to resolve any clouds on title and to be reimbursed for personal
property that it alleges was converted after the property was conveyed to Dewelt.
Dewelt
filed a demurrer to Road Runner Wyoming’s cross-complaint on December 19, 2023,
arguing that Road Runner Wyoming lacked standing to file the cross-complaint
because it was not the entity that was sued and is not a party to the case. The Court sustained the demurrer with leave
to amend pending a motion for leave to intervene filed by Road Runner Wyoming. (05/21/2024 - Minute Order.)
The
Court granted Road Runner Wyoming’s motion to intervene on August 15, 2024. The Court’s August 15, 2024 order vacated all
actions taken under Road Runner Wyoming’s October 17, 2023 cross-complaint
because the Court did not have jurisdiction over the action until its August
15, 2024 order. (08/15/2024 - Minute
Order, at pp. 5-7.) The order set the
date that the cross-complaint was filed to August 15, 2024, and the Court
ordered Road Runner Wyoming to serve its answer and cross-complaint again. (Id. at p. 5.)
On
September 20, 2024, Road Runner Wyoming re-served its cross-complaint on Dewelt
by mail. On October 21, 2024, Dewelt’s
counsel filed a declaration in support of an automatic extension to file a
motion to strike or demurrer. On
November 15, 2024, Dewelt filed a motion to strike portions of the cross-complaint. Road Runner Wyoming filed an opposition on
January 27, 2025. Dewelt replied on
January 30, 2025.
MEET
AND CONFER
Before filing a motion to strike, the parties must
meet and confer “in person, by telephone, or by video conference.” (Code Civ. Proc., § 435.5, subd. (a).) The moving party must file and serve a meet
and confer declaration stating either: “(A) The means by which the moving party
met and conferred with the party who filed the pleading subject to motion to
strike, and that the parties did not reach an agreement resolving the
objections raised in the motion to strike;” or “(B) That the party who filed
the pleading subject to motion to strike failed to respond to the meet and
confer request of the moving party or otherwise failed to meet and confer in
good faith.” (Code Civ. Proc., § 435.5,
subd. (a)(3).)
Dewelt’s
counsel states the parties met and conferred via email, letter, and telephone
discussion on October 12 and 15, 2024.
(Declaration of Christian Oronsaye, ¶¶ 3, 5, Exh. A.) The parties did not come to an agreement
before filing this motion. (Oronsaye
Dec., ¶ 4.)
SUMMARY
OF ARGUMENTS
Dewelt argues the
Cross-Complaint fails to allege sufficient facts to support punitive damages
because the allegations lack the specificity required under California’s
pleading standard. The cross-complaint’s
allegations also fail to support a request for attorney’s fees and cost because
Road Runner Wyoming does not identify any statute supporting attorney’s fees or
a contract giving rise to attorney’s fees by its terms.
Road Runner Wyoming opposes
arguing Dewelt’s motion is untimely and that Dewelt does not demonstrate how
Road Runner Wyoming’s punitive damages allegations are insufficient. Regarding attorney’s fees, Road Runner
Wyoming’s conversion claim gives rise to attorney’s fees because it is akin to Penal
Code section 496, subdivision (c).
Dewelt replies that its
motion is timely because it filed a declaration seeking a 30-day extension on
October 17, 2024. The cross-complaint
fails to plead a basis for punitive damages because Road Runner Wyoming does
not establish Dewelt’s awareness of the probability of dangerous consequences
of Dewelt’s conduct and that Dewelt willfully and deliberately failed to avoid
those consequences. Finally, Road Runner
Wyoming has not stated a basis for attorney’s fees under Civil Procedure Code
section 1021.
ANALYSIS
“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.” (Code Civ. Proc., § 435.) A court may strike from the complaint any
irrelevant, false, or improper matter.
(Code Civ. Proc., § 436, subd. (a).)
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.” (Code Civ. Proc., §
436, subd. (b).) Greshko v. County of
Los Angeles (1987) 194 Cal.App.3d 822, 830 [noting the court’s inherent
power to limit the focus of the proceedings to the issues framed by the
remaining viable pleadings].) An
“irrelevant matter” is an allegation that “is not essential to the statement of
a claim or defense,” “is neither pertinent to nor supported by an otherwise
sufficient claim or defense,” or “a demand for judgment requesting relief not
supported by the allegations of the complaint or cross-complaint.” (Code Civ. Proc., § 431.10, subds.
(b)-(c).) The Court must read the
factual allegations in the complaint as a whole and assume their truth. (Clauson v. Superior Court (1998) 67
Cal.App.4th 1253, 1255.) “The grounds
for a motion to strike shall appear on the face of the challenged pleading or
from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).)
Timeliness of Motion to Strike and the
30-day Automatic Extension
“A
party served with a cross-complaint may within 30 days after service move,
demur, or otherwise plead to the cross-complaint in the same manner as to an
original complaint.” (Code Civ. Proc., §§
430.40, subd. (a), 432.10.) The parties
must meet and confer at least five (5) days before the responsive pleading is
due. (Code Civ. Proc., § 435.5, subd.
(a)(2).) If the parties cannot meet and
confer by this deadline, the moving party is granted an automatic 30-day
extension to file a responsive pleading.
(Ibid.) The extension
begins on the day the responsive pleading was previously due. (Ibid.)
Road
Runner Wyoming served its cross-complaint on Dewelt by mail on September 20,
2024. (Proof of Service - filed
9/20/24.) Dewelt’s original deadline for
filing a responsive pleading was October 25, 2024, which includes five (5)
additional days for service by mail within California. Five days before the responsive pleading deadline
was October 20, 2024. The parties met
and conferred on October 12 and 15, 2024.
(Oronsaye Dec., ¶¶ 3, 5, Exh. A.)
Dewelt filed its declaration in support of the 30-day automatic
extension on October 21, 2024. (Support
Declaration - filed 10/21/24.)
Dewelt
misreads section 435.5, subdivision (a)(2), to authorize a 30-day extension
when the meet and confer occurred but failed.
The purpose of the 30-day extension is to give the parties additional
time to meet and confer if the parties were unable to do so during the original
30 days after service of the complaint or cross-complaint. The statute does not extend the time to file
responsive pleadings if the parties meet and confer but are unable to come to
an agreement.
Because
the parties met and conferred well before the responsive pleading deadline, the
30-day automatic extension does not apply regardless of the outcome of the
parties’ meet and confer efforts. Dewelt’s
motion to strike is untimely.
The
court has discretion to enlarge the time for parties to file responsive pleadings. (See Code Civ. Proc., § 473, subd. (a)(1);
see also Jackson v. Doe (2011) 192 Cal.App.4th 742, 750 [allowing
demurrer filed 38 days after service of complaint where the late filing
plaintiff did not seek default judgment or demonstrate how delay would
prejudice plaintiff].) However, the
Court notes that Dewelt filed this motion to strike on November 15, 2024, fifty-six
(56) days after Road Runner re-served its cross-complaint and twenty-one (21)
days after Dewelt filed its declaration supporting the 30-day automatic
extension.
The
motion to strike contains the same language and arguments reflected in the meet
and confer letter attached to the declaration.
(Support Dec., Exh. A.) Because
Dewelt does not present new or more extensive arguments, Dewelt presents no substantive
arguments about how it will be prejudiced, and the motion is untimely, the Court
denies the motion to strike.
CONCLUSION
Cross-Complainant Dewelt LLC’s Motion to strike
punitive damages and attorney’s fees and costs from the cross-complaint is
denied.
Dewelt LLC to give notice.