Judge: Helen Zukin, Case: 18SMCV00467, Date: 2022-07-25 Tentative Ruling

Case Number: 18SMCV00467    Hearing Date: July 25, 2022    Dept: 207

Background

This case involves the alleged failure to comply with governing documents of the Marina City Club development in Marina Del Rey, California (“the City Club”). Plaintiff is a duly elected member of Nominal Defendant Marina City Club Condominium Owners’ Association. Plaintiff alleges Defendants Essex Marina City Club, L.P. (“Essex”) and Seabreeze Management Company, Inc. (“Seabreeze” or, collectively with Essex, “Defendants”) are signatories to the governing documents.

Plaintiff’s First Amended Complaint, filed on October 15, 2019, alleged claims for breach of contract and accounting against Essex and Seabreeze. Plaintiff’s main contention was that Essex and Seabreeze violated the contractual obligations by failing to ensure expenditures were being made according to the express terms of these agreements.

On August 23, 2021, Essex and Seabreeze filed a motion for judgment on the pleadings as to the First Amended Complaint. The Court granted that motion on February 3, 2022, and granted Plaintiff 30 days leave to amend. When Plaintiff did not file an amended complaint within the time specified in the Court’s February 3 order, Essex and Seabreeze filed a motion for entry of judgment on March 16, 2022. At the April 22, 2022, hearing on the motion, Plaintiff represented she had retained counsel to represent her going forward and requested a continuance of the hearing. The Court granted Plaintiff’s request over Defendants’ objection, and further ordered “Plaintiff Elena Mondragon is directed to file and serve an opposition by 05/06/22.” To date, Plaintiff has not filed an opposition to Defendants’ motion for entry of judgment. Rather, on May 9, 2022, Plaintiff filed a Second Amended Complaint (“SAC”). In response, Defendants’ filed a motion to strike the SAC as untimely. Plaintiff has not filed an opposition to Defendants’ motion to strike.

As Defendants’ motion for entry of judgment and motion to strike are based on the same underlying series of events, the Court will discuss them together.

Entry of Judgment Standard

The procedures for entry of judgment following a successful motion for judgment on the pleadings are set out in Code of Civ. Proc. § 438 et seq. Code of Civ. Proc. § 438, subd. (h)(4)(C) provides in pertinent part that “if the motion [for judgment on the pleadings] is granted with respect to the entire complaint . . . with leave to file an amended complaint . . . but an amended complaint . . . is not filed, then after the time to file an amended complaint . . . has expired, judgment shall be entered forthwith in favor of the moving party.” Such judgment may be entered upon motion of the party seeking entry of judgment. (C.C.P. § 438(i)(1)(B).)

Motion to Strike 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. (Id., § 436(b).) The grounds for a motion to strike are: the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Id. § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id. § 437.)

Analysis

Plaintiff has not filed an opposition to either of Defendants’ motions. However, Plaintiff does address both motions in a Joint Status Report filed by the parties on July 14, 2022. In the Joint Report, Plaintiff argues she was proceeding in pro per between February 2, 2022, and March 15, 2022, and “did not understand what was happening” in the action. (Joint Report at 6-7.) Plaintiff further states Defendants’ motions should be denied because Plaintiff subsequently retained counsel who filed an amended pleading on May 9.

The Court in Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603 considered and rejected similar arguments to those raised by Plaintiff here. In Leader the trial court sustained defendants’ demurrers to plaintiffs’ complaint with leave to amend. Plaintiffs did not file an amended pleading within the time specified in the court’s order sustaining the demurrers. More than a month after the time to amend had lapsed, plaintiffs appeared at a status conference with a proposed amended pleading they wished to file. Defendants brought a motion to strike the proposed amended pleading as untimely and a motion to dismiss the action for failure to amend. The court granted both motions and plaintiffs appealed. (Id. at 607.)

The Court of Appeal affirmed, finding “plaintiffs no longer had an unfettered right to file an amended complaint” after the time period for amendment in the trial court’s order had elapsed. (Id. at 612.) Thus, any further amendment sought after this time period had expired was governed by Code Civ. Proc. §§ 473 and could “only be amended by obtaining the permission of the court.” (Id. at 612-613.) To obtain the court’s permission, “plaintiffs were required to file a noticed motion for leave,” which they did not do (Id. at 613.)

The Court further found “plaintiffs' failure to file an amended complaint within the time allowed by the court subjected any subsequently filed pleading to a motion to strike, either by defendants or on the court's own motion.” (Id.) The Court determined the trial court had properly stricken the proposed amended pleading which was “not filed in conformity with its prior ruling.” (Id. [quotation omitted].) The Court recognized the power of the trial court to strike an amended complaint “filed in disregard of established procedural processes,” or where “no request for permission to amend was sought.” (Id. [quotations omitted].)

In affirming the trial court’s striking of the amended pleading and dismissal of plaintiffs’ action, the Court reasoned:

The action had been pending for nearly six years. Demurrers had been sustained to the third amended complaint, and plaintiffs make no claim the trial court erred in that regard. Plaintiffs did not amend within the time allowed by the court, and did not even attempt to do so until more than a month after the deadline had passed. If, as counsel declared, the reason for the failure to timely file was a search for missing documents, there is no apparent reason why plaintiffs did not bring the issue to the court's or opposing counsel's attention or seek any further extension of the time in which to plead.

(Id. at 614.)

The reasoning of the Court in Leader applies equally to Defendants’ motions here. Plaintiff here did not attempt to amend her operative complaint until more than two months after the deadline set forth in the Court’s February 3 order had passed. Even when Plaintiff had retained counsel, she did not seek an extension of the time to amend her pleading or bring a motion for leave to do so. Plaintiff also ignored the Court’s express directive to file an opposition to Defendants’ motion for entry of judgment, and instead pursued a course of impermissible self-help by filing the SAC despite knowing she did not have leave of Court to do so.

The Court is mindful Plaintiff was proceeding in this case in propria persona for several months relevant to this discussion, however this alone does not excuse Plaintiff’s failure to follow any of the proper procedures available to her and instead simply file an untimely pleading without leave of Court. As a pro per litigant, Plaintiff was ultimately “entitled to the same, but no greater, consideration than other litigants and attorneys.... Further, the in propria persona litigant is held to the same restrictive rules of procedure as an attorney.” (Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125–1126.) “A litigant has a right to act as his own attorney [citation] ‘but, in so doing, should be restricted to the same rules of evidence and procedure as is required of those qualified to practice law before our courts; otherwise, ignorance is unjustly rewarded.’ [Citation.]” (Lombardi v. Citizens Nat'l Trust & Sav. Bank (1955) 137 Cal.App.2d 206, 208-209.)

Accordingly, Plaintiff’s pro per status does not itself excuse her failure to abide by the orders of this Court or the laws of this state in amending her pleading. Further, the Court notes Plaintiff was represented by counsel as of April 22, 2022, and thus was not acting in pro per when she ignored this Court’s directive to file an opposition to the pending motion for entry of judgment by May 6 or filed the untimely SAC on May 9. Thus, Plaintiff cannot credibly assert her prior pro per status to justify her failure to seek an extension of time to file an amended pleading or move for leave to file an amended pleading.

For these reasons, the Court GRANTS Defendants’ motions to strike the SAC and for entry of judgment in their favor.

Conclusion

Defendants Essex Marina City Club, L.P. and Seabreeze Management Company, Inc.’s Motion for Entry of Judgment and Motion to Strike are GRANTED. Moving parties to give notice.