Judge: John C. Gastelum, Case: 21-01225035, Date: 2022-08-09 Tentative Ruling
(1) Motion for Reconsideration (2) Motion to Strike Answer
Tentative Ruling: Plaintiff Griffin Burke (“Plaintiff”) moves to strike the Answer filed by Defendants Grace Kwahk and Grace Kwahk, CSR, Inc. (“Kwahk Defendants”) and for reconsideration of this Court’s April 7, 2022 Order denying Plaintiff’s motion for sanctions based on the bad faith Cross-Complaint and issuing monetary sanctions against Plaintiff in the amount of $2,000.00.
(1) Motion to Strike: Plaintiff states he was unable to meet and confer with counsel for the Kwahk Defendants prior to filing this Motion because their counsel did not respond to his requests. The Court will consider the Motion now but admonishes counsel and Plaintiff that further failure to meet and confer in good faith as required may result in a motion being taken off calendar or denied, as appropriate. The Court notes there have been numerous disputes in this case in a relatively short amount of time and is concerned the parties are not meeting and conferring over the issues raised in these motions in good faith and in a courteous manner.
The Kwahk Defendants filed an Answer on March 23, 2022 (ROA 87) under misspelled names. Instead of Grace Kwahk and Grace Kwahk, CSR, Inc., the Answer lists Grace Khawk and Grace Khawk, CSR, Inc.
On April 12, 2022, the Court sustained Plaintiff’s Demurrer to the Answer of Defendant Kamryn Whitney Court Reporting (“KWCR”) with 10-days leave to amend. (ROA 137.) Thereafter, on April 20, 2022, all three Defendants filed a joint Amended Answer to Complaint, with the correct spelling for the Kwahk Defendants. (ROA 147.)
Plaintiff moves to strike the original Answer of the Kwahk Defendants (ROA 87) on the ground that it was filed on behalf of a person and entity that do not legally exist. Plaintiff moves pursuant to Code of Civil Procedure sections 435(b)(1) and 436. Section 435(b)(1) allows any party to file and serve a notice of motion to strike the whole or any part of a pleading within the time allowed to respond. Section 436 grants the Court authority to, upon motion at any time in its discretion, strike out any irrelevant, false, or improper matter inserted in any pleading or 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.
Plaintiff provides no authority to support his argument that the Kwahk Defendants’ Answer falls within the purview of section 436 by the mere fact that it contains a typographical error. The typographical error does not render the substantive content of the Answer irrelevant, false, or improper matter which may be subject to a motion to strike. Nor does it mean the Answer was not filed in conformity with the laws of this state, a court rule, or an order of the court. Thus, the Motion to Strike is DENIED.
(2) Motion for Reconsideration: Plaintiff seeks reconsideration of the Court’s April 7, 2022 Order denying Plaintiff’s motion for sanctions based on the bad faith Cross-Complaint and issuing monetary sanctions against Plaintiff in the amount of $2,000.00. Alternatively, Plaintiff seeks relief from that Order pursuant to Code of Civil Procedure section 473.
A motion for reconsideration must be based on new or different facts, circumstances or law than those before the court at the time of the original ruling. (Code Civ. Proc., § 1008, subd. (a).) A court may not reconsider any order unless a motion for reconsideration complies with the requirements of section 1008. (Id., § 1008, subd. (e).)
Plaintiff asserts the evidence presented in his declaration that he complied with the 21-day requirement is a new or different fact supporting reconsideration. However, that evidence was already before the Court in Plaintiff’s belated supplemental declaration filed on March 8, 2022, which the Court declined to consider.
Plaintiff has provided no new or different facts, circumstances, or law than those before the Court at the time of the April 7, 2022 Order. Thus, Plaintiff’s Motion for Reconsideration is DENIED.
Plaintiff’s alternate request for relief from the April 7, 2022 Order under Code of Civil Procedure section 473 is based on his assertion he mistakenly did not notice the proof of service showing compliance with section 128.7’s 21-day safe harbor provision was not attached to his original motion for sanctions.
Code of Civil Procedure section 473(b) provides, in pertinent part:
“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”
The Court finds granting Plaintiff relief under section 473 due to his claim of mistake would not further the interests of justice. As stated in the April 7, 2022 Order, Plaintiff did not attempt to cure the defect of his motion for sanctions until he filed a supplemental declaration on March 7, 2022, after seeing the Court’s tentative ruling that the motion would be denied for failure to comply with the safe harbor provision. (ROA 131.) The Court expressly declined to consider the belated supplemental declaration under Rule 3.1300(d) of the California Rules of Court. Inherent in the Court’s decision is the finding that consideration of the belated supplemental declaration would be unjust. The Court sees no reason to disturb that finding. The Court further found Plaintiff brought that motion for sanctions for the improper purpose to harass and needlessly increase the cost of litigation and imposed sanctions under Code of Civil Procedure section 128.7(h). (ROA 131.) That section states: “It is the intent of the Legislature that courts shall vigorously use its sanctions authority to deter that improper conduct or comparable conduct by others similarly situated.” The Court finds no reason to relieve Plaintiff from the April 7, 2022 Order, which is intended to deter Plaintiff’s improper conduct.
Thus, the Motion for Reconsideration is DENIED in whole.
Kwahk Defendants to give notice.