Judge: Jon R. Takasugi, Case: 22STCV30718, Date: 2023-09-08 Tentative Ruling

Case Number: 22STCV30718    Hearing Date: January 24, 2024    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            Defendant’s motion to strike is GRANTED.

On 9/20/2022, Plaintiff Gagnon filed suit as an individual and in

a directive capacity on behalf of Geminon Properties, LLC (Plaintiff) against Arsalan Hamidi (Defendant). On 6/5/2023, Plaintiff filed a first amended complaint (FAC) alleging: (1) breach of operating agreement; (2) breach of fiduciary duties; (3) constructive fraud; (4) constructive trust; (5) conversion; (6) cessation; and (7) declaratory relief.

            Now, Defendant moves to strike Plaintiff’s SAC.

Discussion

            Defendant argues that Plaintiff’s SAC must be struck because it is untimely. In support, Defendant notes that:

The Court, on September 13, 2023, sustained Defendant’s demurrer to Plaintiff’s First Amended Complaint with 10 days’ leave to amend. The last day for Plaintiff to file its SAC was September 28, 2023. However, Plaintiff waited until October 3, 2023 to file the SAC. As such, the SAC is a pleading not drawn or filed in conformity with the Court’s order and should therefore be stricken in its entirety.

            (Motion, 3: 6-9.)

            In opposition, Plaintiff does not dispute that the SAC was untimely filed, though he offers a timeline to show how counsel came to file on the incorrect day. Plaintiff contends that it would be unjust to dismiss Plaintiff’s entire action without giving Plaintiff the opportunity to correct a curable defect, and that the Court has discretion to accept the late-filed SAC pursuant to CCP section 472(a).

            After review, the Court finds that Plaintiff’s SAC should be stricken. Plaintiff violated a Court ordered deadline to file, and cannot avoid penalty for such an action. This ruling is without prejudice, and thus Plaintiff is not being deprived an opportunity to correct a curable defect. (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768.)

            Based on the foregoing, Defendant’s motion to strike is granted.

It is so ordered.

Dated:  January    , 2024

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.