Judge: Joel L. Lofton, Case: 22STCV04068, Date: 2023-09-11 Tentative Ruling
Case Number: 22STCV04068 Hearing Date: September 11, 2023 Dept: X
Tentative Ruling
Judge Joel L. Lofton,
Department X
HEARING DATE: September 11, 2023 TRIAL
DATE: No date set.
CASE: JENNIFER PENEZ,
individual and as Successor-in-Interest to JAZLYN KATANA HOLGUIN, deceased;
JOSE HOLGUIN, individually and as Sucessor-in-Interest to JAZLYN KATANA
HOLGUIN, deceased, v. HEEWOON CHUNG, an individual; MI SEON CHOI, an
individual, DEL REY POOL PLASTERING, INC., a California Corporation; LESLIE
POOLMART, INC., a Delaware corporation; DILLINGER ALL ELECTRIC SERVICES, an
unknown entity; and DOES 1 through 50, inclusive.
CASE NO.: 22STCV04068
MOTION
TO STRIKE & OTHER PENDING MOTIONS
MOVING PARTY: Defendants
Heewoon Chung and Mi Seon Choi
RESPONDING PARTY: Plaintiffs
Jennifer Penez and Jose Holguin
SERVICE: Filed June 30, 2023
OPPOSITION: Filed September 1, 2023
REPLY: No reply filed.
RELIEF
REQUESTED
Defendants move to strike portions
of Plaintiffs’ FAC.
BACKGROUND
This case arises out of Plaintiffs Jennifer
Penez (“Penez”) and Jose Holguin’s (“Holguin”) (collectively “Plaintiffs”)
wrongful death claim as successors-in-interest to Jazlyn Katana Holguin
(“Decedent”). Plaintiffs allege that leased property located at 2358 Caldero
Lane, Montrose, CA 91020 (“Plaintiffs”). Plaintiffs allege that the pool
located in the backyard of the Subject Property was improperly maintained and
lacked adequate safety measures. Plaintiffs allege that Decedent fell into the
pool on February 9, 2021, and drowned because of the lack of safety features at
the Subject Property. Plaintiffs allege that Decedent was declared dead on
February 16, 2021. Plaintiffs filed a first amended complaint (“FAC”) on March
28, 2022, alleging three causes of action for (1) negligence/premises
liability, (2) negligence, and (3) survival action.
TENTATIVE RULING
Defendants’
motion to strike is DENIED.
Plaintiff’s
ex parte application to continue the hearing for the motion to summary judgment
is GRANTED.
LEGAL STANDARD
Any party, within the time allowed to respond to a pleading
may serve and file a notice of motion to strike a pleading or any part thereof.
(Code Civ. Proc., § 435, subd. (b)(1).) 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, subd. (a).) The court may also
strike all or any part of any pleading not drawn or filed in conformity with
California law, a court rule, or an order of the court. (Code Civ. Proc.,
§ 436, subd. (b).) An immaterial or irrelevant allegation is one 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. (Code Civ. Proc., 431.10, subd. (b).) The grounds for
moving to strike must appear on the face of the pleading or by way of judicial
notice. (Code Civ. Proc., § 437.)
DISCUSSION
Motion to Strike
Defendants
move to strike portions of Plaintiffs’ FAC. Defendants move to strike claims
related to the habitability and condition of the Subject Property. Defendants
also move to strike Plaintiffs’ prayer for punitive damages and pre-judgment
interest.
Any party,
within the time allowed to respond to a pleading may serve and file a notice of
motion to strike a pleading or any part thereof. (Code Civ. Proc., § 435,
subd. (b)(1).) Code of Civil Procedure section 471.5, subdivision (a),
provides, in part: “The defendant shall answer the amendments, or the complaint
as amended, withing 30 days after service thereof, or such other time as the
court may direct”.
Plaintiffs
FAC was filed on March 28, 2022. Defendants filed a motion to quash service of
summons which was denied on November 29, 2022. Defendants filed their answer to
the FAC on December 20, 2022, in accordance with a court order denying
Defendants’ motion to quash. Defendants did not file this motion to strike
until June 30, 2023, almost six months after the responsive pleading was
required to be filed. Defendants’ motion to strike is denied as untimely.
Other
Pending Motions
In
addition to the motion to strike the FAC, the parties have two motions to
quash, two motions to compel further, a motion for summary judgment, and an ex
parte application to continue the hearing.
All
discovery motions are taken off calendar. The court orders the parties to submit to an
Informal Discovery Conference for pending discovery disputes. The date for which will be discussed during
this hearing. The court also tentatively
grants Plaintiff’s ex parte application to continue the hearing on the motion
for summary judgment to allow parties to engage in discovery in this case. The new
hearing date for the motion for summary judgment will also be discussed at the
hearing on September 11, 2023.
CONCLUSION
Defendants’
motion to strike is DENIED.
Plaintiff’s
ex parte application to continue the hearing for the motion to summary judgment
is GRANTED.
Dated: September 11,
2023 ___________________________________
Joel
L. Lofton
Judge
of the Superior Court