Judge: Holly J. Fujie, Case: 214STCV05249, Date: 2024-10-08 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. 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 by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

Case Number: 214STCV05249    Hearing Date: October 8, 2024    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Defendant Aspire Bakeries, LLC (“Aspire” or “Defendant”)

RESPONDING PARTY: None

            The Court has considered the moving papers. No opposition papers were filed.

BACKGROUND

             This action arises out of a lease relationship. As originally filed on March 1, 2024, Plaintiff’s complaint (the “Complaint”) alleges two claims: (1) Breach of Lease; and (2) Common Count.

On July 1, 2024, Defendant Aspire filed the instant demurrer (the “Demurrer”) to the second cause of action in the Complaint.  On July 25, 2024, Plaintiff filed a Request for Dismissal without prejudice of the Second Cause of Action for Common Count Only, which dismissal was entered in September 26, 2024.  The Demurrer is therefore MOOT.

Defendant concurrently filed a motion to strike (the “Motion”) portions of the Complaint in the first cause of action of the Complaint.  Plaintiff has not filed an opposition to the Motion, which was due September 24, 2024. 

MEET AND CONFER

The meet and confer requirement has been met for the Motion.

REQUEST FOR JUDICIAL NOTICE

            Defendant requests judicial notice of the entirety of the lease (the “Lease”) referenced in the Complaint, which Aspire has attached as Exhibit 1 to its Request for Judicial Notice (the “RJN”).  A portion of the RJN’s Exhibit 1 is attached as Exhibit 1 of the Complaint, and it appears from the fact that Plaintiff filed no objection or opposition to the RJN that there is no dispute as to the fact that the complete version of the Lease is attached as Exhibit 1 to the RJN.  Based on Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal.App.4^th 659, 666, n. 2, the Court GRANTS the RJN for the purpose of this Motion.

DISCUSSION

Motion to Strike

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 that 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.)

Here, Defendant moves to strike specified language from Plaintiff’s Complaint, namely:

1)    Page 5, line 17 (beginning with “defendants, and each of them”) through line 20 (ending with “$100,000.”)

2)    Paragraphs 18-19

3)    Page 6, line 23 (beginning with “(a)”) through line 24 (ending with “operation”)

4)    Page 6, line 25 (beginning with “(c)” through “Allowance,”)

5)    Page 7, line 4: “loss of percentage rent”

6)    Page 7, line 5 (beginning with “costs”) through line 6 (ending “Premises.”)

As noted above, Plaintiff has not filed any opposition to the Motion.  The failure to file an opposition creates an inference that the motion is meritorious. (Sexton v. Superior Court (1997) 58 Cal.App.4^th 1403, 1410.)  Based upon this inference, the Court GRANTS the Motion with thirty days leave to amend.

Moving Party is ordered to give notice of this ruling.           

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 8th day of October, 2024