Judge Lee W. Tsao, Case 22NWCV00157 2023-04-27 Tentative Ruling

Judge: Lee W. Tsao, Case: 22NWCV00157, Date: 2023-04-27 Tentative Ruling

Case Number: 22NWCV00157 Hearing Date: April 27, 2023 Dept: SEC

STEVE ESQUIBEL, ET AL., v. IEV FACTORY, INC., et al.,

CASE NO.: 22NWCV00157

HEARING: 04/27/23

TENTATIVE ORDER

DEFENDANTS IEV FACTORY, INC., MARTIN KRUSZELNICKI, AND YUTAKA MIYAZAKI’S MOTION TO DISMISS IS GRANTED.

Moving party(s) to give notice.

On March 4, 2022, Plaintiffs Steve Esquibel, Lara Sellars, Maho Mitsuya, and EV Factory, Inc., (collectively “Plaintiffs”) filed a Complaint for (1) fraud and (2) breach of contract against Defendants IEV Factory, Inc., Martin Kruszelnicki, and Yutaka Miyazaki (collectively “Defendants”).

On September 22, 2022, the Court overruled Defendants’ demurrer as to Plaintiffs’ cause of action for fraud, and sustained, with thirty days leave to amend, Defendants’ demurrer to Plaintiffs’ cause of action for breach of contract.

On November 1, 2022, Plaintiffs filed a First Amended Complaint (“FAC”).

Defendants now move to dismiss Plaintiffs’ FAC on the grounds that it was not timely filed.

The Court may dismiss a complaint as to a particular defendant if, after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend within the time allowed by the court and either party moves for dismissal. (Code Civ. Proc., § 581(f)(2).)

The Court finds that Defendants filed the incorrect motion. Here, the demurrer was overruled in part, and sustained, with leave to amend, in part. Defendants should have moved to strike the FAC, as it was improperly filed by Plaintiffs. Dismissing the FAC may create the impression that this action has been dismissed against Defendants as Code of Civil Procedure section 581(f) is used to either dismiss an entire action or dismiss a party; however, Plaintiffs’ cause of action for fraud is still operative against Defendants. Accordingly, the Court DENIES Defendants’ Motion to Dismiss.

Notwithstanding, pursuant the discretionary authority given to the Court under Code of Civil Procedure section 436(a)-(b), the Court strikes the FAC filed by Plaintiffs. ((Code Civ. Proc., § 436(a)-(b) [The court may, upon motion or at any time in its discretion and upon terms it deems proper, strike out any irrelevant, false, or improper matter inserted in any pleading, or strike out 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.]

Thus, Plaintiffs’ FAC is STRIKEN.